Amar Kanta Sen v. Sovana Sen (1960)

What does a woman get after a divorce granted against her on the ground of her adultery? This decision answers that under the permanent alimony provision she is entitled to a bare subsistence or "starving" allowance and no more, and that even that disappears once she can support herself. It is the case to use both for the mechanics of permanent alimony — an absolute judicial discretion exercised on the circumstances — and for the criticism that the standard applied to a wife's past conduct has nothing to do with the husband's means or his own behaviour.

The marriage was dissolved on 10 July 1959 on the ground of the wife's adultery; her own allegation that her husband had committed adultery was found unsupported by evidence. An order for maintenance of two hundred rupees a month had been in force from May 1956.

In August 1959 she applied for permanent maintenance of three hundred and fifty rupees a month. She said she came of a very respectable family, was accustomed to a decent way of living, would not and did not intend to marry again, and wished to lead a chaste life dedicated to the welfare of her son and to her music and painting, for which she had special aptitude; that she was not in good health, was practically without means, had no friends or relations to support her, that her monthly expenses came to about three hundred and fifteen rupees, and that she had incurred debts of four thousand rupees. She asserted a right under Hindu law to be maintained so long as she lived decently according to the standard she was accustomed to and her husband could bear the expense.

He disputed the salary figure she gave and said she was not entitled to maintenance, having betrayed her obligations as a wife. He also stated, on information from Delhi, that she had been offered an appointment as Assistant Producer (Music) at All India Radio. She denied it and asked the court to take no notice of the allegation.

The court found that she was a graduate and an adept in music; that she was earning about ninety rupees a month at the time of the petition; that she had in fact been appointed at a consolidated salary of three hundred rupees before 7 September 1959 and joined duty at Delhi on 17 September 1959; and that there was no evidence of any misconduct by her after the judgment. It also recorded that she had deliberately persisted in denying the appointment with a view to obtaining an undue advantage in the application.

She was held entitled only to a bare subsistence or starving allowance, which the judge fixed liberally at one hundred and twenty-five rupees a month — the sum she would have received had she no income at all. Since she was in fact earning ninety rupees during the relevant period, the alimony she could legally claim was the difference of thirty-five rupees a month, from the date of the decree until she joined service, amounting to seventy-nine rupees and thirty-three naye paise in all. From the date she joined service she was entitled to nothing, because once she is earning a living and is not in a helpless position, even the right to bare subsistence disappears, the allowance being meant to prevent starvation.

1. Trace the provision. The permanent alimony provision follows the earlier divorce legislation, which was itself modelled on the English matrimonial causes statute, except that the Hindu statute imposes a like obligation on the wife to maintain her husband in similar circumstances.

1. The discretion is absolute and fact-based. Under the English provision the court has an absolute discretion to be exercised according to the circumstances of each case. It will order a husband to secure a provision for his guilty wife even though his own conduct has been unimpeachable, if she is proved to be entirely without means of support and unable through ill-health to earn her own living. In the case cited, the point that weighed was precisely that she was unable, by reason of her health, to earn.

1. Provision may be made to keep her from destitution, and be made conditional. In a second English decision the court, granting a divorce to a husband who had earlier been judicially separated for his own cruelty, directed that the decree should not be made absolute until he secured an allowance for the divorced wife. The reason given was not his past conduct but that she should be preserved from imminent temptation and reasonably safe from it; and for that very reason it was held material that the allowance be made conditional on her leading a chaste life in future, so that she should know and be made to feel that her livelihood depended on it.

1. The old Hindu law was to the same effect. A wife who persists in a vicious course of life forfeits her right to maintenance even where it is secured by a decree; but if she completely renounces her immoral course of conduct the husband is liable to furnish a bare or starving maintenance — food and raiment just sufficient to support her life — and the burden of proving that the erring wife has returned to purity is on the wife herself. In this respect there is little difference in principle between the English law and the Hindu law as it stood before the 1955 Act.

1. Apply it. She was therefore entitled to a starving allowance only. The sum she claimed as her expenses was far more than that, exceeding even the interim maintenance. Her own earnings had to be set off, and once her salary began there was no helplessness and therefore no allowance.

It opens the question of permanent alimony under the Act: the discretion, the factors — means, ability to earn, health, and conduct — and the rule that the wife's own income is set off.

It disposes of the claim that a divorced wife is entitled to be maintained at the standard she was accustomed to irrespective of her conduct, and the claim that a maintenance right survives once she can support herself.

It does not decide anything about maintenance for a wife who is not at fault, where the reasoning is entirely different, nor about the position of the children. It is also a decision a student should argue against: the "starving allowance" rule, the conditional-on-chastity reasoning drawn from the English cases, and the placing of the burden on the erring wife to prove her return to purity are all open to the criticism that they apply a moral test to a woman that is applied to no one else — a criticism worth making in any answer on gender justice in the personal law.