This article is written by Sudhakar Singh. The case of Amar Kanta Sen vs. Sovana Sen (1960) was decided by the Calcutta High Court and was a landmark decision regarding the law of maintenance of the wife. The article provides a detailed analysis of the issues that arose in the case and the judgement and rationale given by the court based on the facts. 

Introduction

Of all the laws, the law of maintenance has a special place in Hindu law. The importance and extent of the right of maintenance necessarily arise from the theory of the Hindu joint family. The manager of a joint family has legal duties that require him/her to support all members of the family, including their wives and children, from the profits of the joint family property. In the undivided family, irrespective of the status of the members and their age, all are entitled to maintenance. Conveying the spirit of this text of Manu, the Mitakshara says, “The aged mother and father, the chaste wife, and an infant child must be maintained even by doing a hundred misdeeds.” Under Hindu law, a person has a personal obligation to maintain his wife, children, and aged and infirm parents. It arises from the very nature of the relationship and exists whether he possesses property or not. This branch of law concerning personal obligations that are owed to certain relations has now received legislative codification in the Hindu Adoptions and Maintenance Act, 1956, which is a complete code of law dealing with the right to maintenance in Hindus. However, there are certain other laws that are also related to the provisions of the law of maintenance but are made with a specific ultimate goal, namely, the Hindu Marriage Act, 1955, and the Code of Criminal Procedure, 1973.

The term ‘divorce’ is derived from the Latin word ‘divortium’, which means to turn aside or to separate. Divorce legally ends a matrimonial bond. It is inherited in all the jurisprudence of society that marriage relations should be protected at all costs. Its severance can be allowed only in the manner specified by law. In society, divorce is not permitted or encouraged, but it is allowed in grave circumstances. Under uncodified Hindu law, divorce is not recognized as the end of the marriage. Rather, the marital bond is seen as an indissoluble union of husband and wife. According to Manu, a wife cannot be separated from her husband either by sale or abandonment, which implies that marital ties cannot be segregated. In Hindu religion, marriage acts as a sacramental, permanent, or eternal union, not a contract. In customary practices, divorce was recognized in some Hindu communities and tribes. In Kautilya Arthasastra, divorce was permitted with the mutual enmity and consent of the parties. Post-colonial Hindu law focuses on recognising divorce in the form of a right of the matrimonial parties. The subsequent laws gave the essence of progressiveness and modernity to divorce. Under the Hindu Marriage Act 1955 (hereinafter referred to as the Act), the grounds for divorce have been recognized. Section 13 of the Act gives various grounds under which the conjugal parties can claim divorce. Through judicial precedents, various other grounds have been added as the grounds of divorce. 

Facts of the case 

In Amar Kanta Sen vs. Sovana Sen (1960), on 10-7-1959, marriage was dissolved by the court on the grounds of adultery. Later, on 17-08-1959, the wife filed an application before the same judge and claimed an amount of Rs. 350. She stated that she came from a respectful family, had been married to a very respectable man, and had been leading a very decent life. She was not intending to marry again and wanted to dedicate the rest of her life to the welfare of her son. She intended to lead a chaste and decent life while pursuing her interests in music and painting. She asserted that she had no friends or family to support her. Her monthly expenses were Rs. 315, and she had incurred debt of Rs. 4000 to maintain herself during the period of separation when she had no income. The wife had skill in music and earned Rs. 90 per month since she made the petition. After making a petition, when she joined All India Radio in Delhi, she was earning Rs. 300 per month. The respondent claimed that he has been earning an amount of Rs.1360 per month, out of which Rs. 475 was shown as payable in the suspense account, and Rs. 879 was payable for August 1959. 

Issues raised 

The issues raised in this case were 

• Whether the wife is entitled to get maintenance when she is getting her own salary?
• Whether the husband is liable to provide maintenance to wife after she was found to be guilty of adultery?
• Whether the wife has any right to maintenance under Hindu law?

Arguments of the parties

Appellant 

In this case, the appellant denied all the claims made in the affidavit of opposition filed by the respondent and stated that the court should not take any notice of such claims. It was also contended by the appellant that under Hindu law, as long as she is leading her life decently and according to the standards of Hindu law, she is entitled to get maintenance. The appellant also claimed that, as her husband is capable of bearing the expense of her maintenance, it is his moral and personal obligation to maintain her expenses. The appellant claimed permanent alimony of Rs. 350/- from her husband and also stated that she had incurred the debt of Rs. 4000/- for her maintenance, to which she is entitled.

Respondent

In this case, the arguments raised by the respondent husband were that his salary was Rs. 879 per month and not Rs. 1700, as asserted by his wife. It was also claimed that the appellant had committed adultery with Purnendu Roy and two other men. Thus, she had betrayed her faithful obligations and matrimonial duties as a wife. And therefore, she is not entitled to maintenance. In the affidavit, the respondent also argued that the appellant has not incurred any debt of Rs. 4000; therefore, it must not be taken into consideration by the court. It was also stated by the husband that, as the appellant was earning herself and so she was self-sufficient in maintaining herself, she was not entitled to get maintenance. 

Concepts involved in this case

The Hon’ble Court specifically mentioned various laws with regard to the maintenance given to the wife and discussed the basic concept related to the maintenance allowance given to the wife. The concepts are as follows: 

Section 25 of the Hindu Marriage Act, 1955

Under Section 25, the Court can grant a right to claim permanent alimony and maintenance for either of the spouses. When the Hindu Marriage Act was not enacted, the right to maintenance was available to the wife only. The husband’s obligation to maintain his wife does not come to an end only because of a decree passed by the court under the Act. Alimony under Section 25 of the Act cannot be availed if proceedings for maintenance have been initiated under Section 18 of the Hindu Adoption and Maintenance Act, 1956. Under both enactments, the Court has different jurisdiction, which cannot be overlooked. The right to get alimony under Section 25 of the Act only arises when the court passes a decree under Sections 9 to 14 of the Act. 

Section 25(1) enumerates the criteria to determine alimony. It states that the court must consider the following things before deciding on maintenance and granting permanent alimony: 

• The respondents income and property,  
• Income and property of the appellant, 
• The conduct of parties,
• The other circumstances of the case.

The amount claimed by parties must be just in the court’s opinion. The Act gives discretionary power to the court to decide the mode of assessment of permanent alimony. The section does not give a set of fixed principles that suit all the circumstances arising out of different cases. Under Section 25(1) of the Act, the Court can decide the maintenance of the petitioner as a gross sum, monthly sum, or periodical sum that must not exceed the life of the petitioner. If the court thinks fit, it may charge the immovable property of the respondent along with the alimony. If the respondent is a salaried employee, then his salary can also be charged as a maintenance allowance. The charge on property does not exist by itself unless it is fixed by the court’s decree or by the agreement of parties. 

The parties are not allowed to make an agreement to prevent the other party from claiming alimony. Any agreement between the parties cannot deprive the Court of exercising its discretionary power under Section 25(1) of the Act. It is so because the right to maintenance is a statutory right, and therefore, parties cannot contract themselves by an agreement. In Geeta Satish Gokarna vs. Satish Shankarroa Gokarna (2004), the Court held that the jurisdiction of the Court to grant maintenance cannot be eradicated by any agreement, and doing so would be against public policy. Under Section 25(2) of the Act, 1955, if there is a change between the parties subsequent to the decree passed under Section 25(1), and if the court is satisfied, then the court can vary, modify, or change the decree so passed. Whereas the court has discretion under Section 25(3) that if parties have remarried to any other person or husband engaged in a sexual intercourse with other women or if the wife does not remain chaste, in such cases also the decree of alimony can be varied, modified, or changed by the Court. 

Similar provisions have been inserted under Section 37 of the Indian Divorce Act, 1869, which says that a husband must ensure to pay a gross sum or annual sum of money to his wife for any term, but such payment of alimony must not exceed the lifetime of the wife. The amount fixed by the court must be reasonable and must be in accordance with his fortune. 

Dum casta clause 

The Dum casta clause is an agreement of terms and conditions between marital spouses inserted under a divorce agreement. It says that the maintenance allowance will not be given when the party getting maintenance remarries or starts living together as husband and wife with another person. Whenever the divorce agreement is framed, it is highly recommended to add a dum casta clause to the agreement. This clause prohibits other parties from taking advantage of legal protection by getting maintenance allowances even after remarriage.

Adultery as the ground of divorce 

Before the 1976 Amendment, adultery was a ground for judicial separation under Section 10(1) of the Act. Adultery as a ground for judicial separation was different from the adultery in which a decree of divorce could be obtained. To get divorce on the grounds of adultery, it was required to establish that the other spouse was guilty of a course of adulterous conduct. After the 1976 amendment, a single act of voluntary sexual intercourse with any other person has been made as a ground for divorce, under Section 13 of the Act. After the amendment, it is not required to prove a continuous course of adultery for divorce. The only thing that is required to be established is that the respondent has willfully indulged in sexual intercourse with a person other than his or her spouse. The burden of proving adultery is on the person who made the allegation. The evidence of adultery is based on circumstantial evidence, as no direct evidence of adultery is generally available. 

Relevant judgements

Ashcroft vs. Ashcroft and Roberts (1902)

In this case, it was held that under Section 32 of the Matrimonial Causes Act 1857, courts have discretionary power to exercise as per the circumstances of each case. It was also held that if the wife is without means of subsistence and unable to earn her living due to her ill health, then the husband is responsible for maintaining her. 

Squire vs. Squire and O’Callaghan (1905)

In this case, it was held that the decree regarding the dissolution of marriage should not be made absolutely until the husband can secure a maintenance allowance from his wife. It is so because it is the court’s duty to prevent the wife from imminent temptation. If a wife is left alone without a maintenance allowance, it would lead her to assault herself. A dum casta clause should be inserted here, which says that the maintenance obligation of parties should stop when the conjugal parties live together as husband and wife with another person. The wife must know that her livelihood depends on her leading a chaste life. 

Bhagyashri Jagdish Jaiswal vs. Jagdish Jaiswal (2022)

In this case, the Bombay High Court held that in this contemporary world, where women are engaged in gainful employment or have their own income, another view is taking ground that where the husband has no income or is unable to maintain himself due to his ill health, in such a case the husband is entitled to get maintenance from his wife on dissolution of marriage. 

Dwarkadas Gurumukhdas Agarval vs. Bhanuben (1986)

In this case, the Gujarat High Court held that while fixing the interim maintenance, it was irrelevant to consider the acts of the parties. Once it is established that the petitioner has no sufficient means of her or his support, the court should pass an order for interim maintenance. There might be cases where the respondent has no income or means, and the court should not fix any amount of maintenance. If there is an accusation of adultery, the court should not consider it while granting interim maintenance. 

Anand Prakash vs. Mansha Kumari (2020)

In this case, Patna High Court held that if the wife joins any service after filing an application for maintenance, then it is a material fact and should be considered while granting a maintenance allowance. If the claimant has sufficient means to maintain himself or herself, then no amount of maintenance can be granted to him or her.

Saroj Devi vs. Ashok Puri Goswami (1988)

In the case, the trial court fixed an amount of maintenance on the condition that if she was found living in adultery, she would refund the amount of maintenance. Later, the case went for appeal, and the Rajasthan High Court held that such conditions could not be attached to the order. 

Judgement in Amar Kanta Sen vs. Sovana Sen (1960)

The Calcutta High Court, after taking into consideration the facts, arguments, and issues raised in the case, decided that the appellant is not entitled to a maintenance allowance as the appellant is not helpless and she earns her own livelihood from her All India Radio job. However, it was decided that for the period of 10-7-1959 to 17-9-1959, the appellant had no income; therefore, she was entitled to get an allowance of Rs. 79.33.

Rationale behind this judgement

The reason for the court’s decision was that the wife was not in a helpless condition and therefore entitled to a bare subsistence allowance. The Court noted that, as she was already earning herself from her All India Radio job, she was not entitled to get any allowance after 17-9-1959. The expenses shown by the appellant, i.e., Rs. 315, were much more than the starving allowance and more than the interim allowance of Rs. 200 per month. In cases where she has no income for herself, she would be entitled to a monthly allowance of Rs. 125. As the appellant was earning a sum of Rs. 90 per month from her musical pursuit during the period of 10-7-1959 to 17-9-1959, the payable amount of maintenance by the respondent is the difference of Rs. 125 and Rs. 90 per month, which is Rs. 35 per month. After calculating the reasonable expenses, the court found that the wife is entitled to get a maintenance allowance of Rs. 79.33. The Court stated that the amount is payable only for the period of 10-7-1959 to 17-9-1959, as she was not earning herself for the said period. Thus, the husband is responsible for the maintenance of his wife. 

Analysis of the case

In this case, the court had to decide if the defendant was entitled to maintenance, taking into consideration some factors and evidence. The case also brought out the fact that maintenance is a form of social justice with the aim of taking care of women and children. They include aspects like the ability of the husband to pay the agreed amount, the income and the property of the wife, and the lifestyle of the couple throughout the marriage. The court clarified the law and elaborated on the condition on which the wife is entitled to get an allowance from her husband. If the wife refuses to fulfil the standards of matrimonial obligations, then she loses her maintenance right, and the dum casta clause applies. If a wife is earning her own living, then she is not entitled to get maintenance from her husband. If a wife is unable to make her own living, then food and clothing can be sufficiently covered under a starving allowance. It was also pointed out by the court that the husband cannot be forced to pay an extra allowance than a starving allowance. In this case, the court re-emphasised that a wife’s right to maintenance is as much statutory as it is social. The Court emphasised that the wife is entitled to get maintenance despite any disputes about their marital status or her conduct. It reflects the protective nature of maintenance provisions in ensuring the welfare of women and children in Indian society.

Conclusion 

Under Hindu law, it is a moral and personal obligation of the husband to maintain his family. In cases of dissolution of marriage, if the wife is leading a chaste and decent life, the husband is responsible for the maintenance of her wife and son. In the case of an unchaste wife who leads a vicious course of life, she loses her maintenance rights even if they are secured by decree. Under Hindu law, an unchaste wife is entitled to get only a starving allowance, i.e., food, and means to support her life should be taken care of by her husband. In a situation where the wife is earning her own livelihood, she loses all rights to maintenance from her husband. If the wife is unable to earn her living due to her ill health, then it is the duty of the husband to maintain the wife, and the wife is entitled to get a maintenance allowance. Under the Act, it is the marital obligation of spouses to maintain each other. In cases where the husband is not earning his livelihood, he is entitled to get maintenance from his working wife.

Frequently Asked Questions (FAQs)

What are the grounds for divorce under the Hindu Marriage Act, 1955? 

Under Section 13 of the Hindu Marriage Act, 1955, either spouse can obtain divorce on the grounds of: 

• Adultery
• Cruelty
• Desertion for at least 2 years
• Conversion to another religion
• Incurable insanity or mental disorder
• Incurable and virulent leprosy
• Venereal disease in communicable form
• Renouncing the world and becoming a Sanyasi
• Not being heard of for seven years
• Non-cohabitation after a decree of judicial separation for at least one year
• Non-compliance with a decree of restitution of conjugal rights for at least one year
• Husband being guilty of rape or unnatural sex after marriage
• Husband failing to pay the wife maintenance ordered by a court
• Mutual consent.

Whether a son is entitled to get maintenance allowance from his father under the Hindu Marriage Act? 

No, under the Hindu Marriage Act, a son is not entitled to a maintenance allowance. But son is entitled to get a maintenance allowance under the Hindu Adoption and Maintenance Act, 1955.

Which court is vested with the power to decide cases of divorce? 

The district court has jurisdiction to decide cases of divorce under the Hindu Marriage Act. In cities, there is a city civil court that is vested with the jurisdiction to decide matrimonial cases. 

References

Books

• Hindu Law by RK Agarwal, 2021st Edition, by Central Law Publication
• Hindu law by Sir Dinshaw Fardunji Mulla and Satyajit A. Desai, 25th Edition by LexisNexis