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PETITIONER:

SMT. CHAND DHAWAN

Vs.

RESPONDENT:

JAWAHARLAL DHAWAN

DATE OF JUDGMENT11/06/1993

BENCH:

PUNCHHI, M.M.

BENCH:

PUNCHHI, M.M.

YOGESHWAR DAYAL (J)

CITATION:

1993 SCR (3) 954 1993 SCC (3) 406

JT 1993 (4) 22 1993 SCALE (3)1

ACT:

%

Hindu Marriage Act, 1955-S. 25 and Ss. 9 to 14, 24 & 28-`Any

decree' in S. 25-Dismissing of matrimonial petition, held,

does not constitute `only decree' for award of permanent

maintenance or alimony--Marital status has to be affected or

disrupted for maintenance to be awarded--Evidence Act, 1862,

s. 41

Hindu Marriage Act, 1955--S.25-Hindu Adoptions and

Maintenance Act, 1956--S.18--Held, Court cannot grant relief

of maintenance simplicitor obtainable under one Act in

proceedings under the other-Code of Criminal Procedure 1973,

s. 125.

Interpretation of Statutes-Hindu Marriage Act. 1955-S. 25-

Hindu Adoptions and Maintenance Act, 1956-S. 18-Held, where

both statutes codified and clear on their subjects,

liberality of interpretation cannot permit interchangeabil-

ity so as to destroy distinction.

HEADNOTE:

The parties were married in 1972 in Punjab. In 1985, a

petition for divorce by mutual consent was filed in court at

Amritsar The appellant-wife alleged that she was not a

consenting party, and the petition was dismissed in 1987

following an agreement on the basis of which she would be

put back in the matrimonial home. However, barely three

months later, the respondent husband filed a regular

petition for divorce at Ghaziabad inter alia alleging

adultery against his wife. The appellant-wife refuted the

charge. The Court granted her maintenance pendente lite at

Rs. 1,000 p.m. The husband not paving this amount, the

divorce proceedings stand stayed.

On 22nd March, 1990 the appellant moved the District judge,

Amritsar and was granted Rs. 6,000as litigation expenses

and Rs. 2,000as maintenance pendente lite from the date of

application under S. 24. She also claimed permanent alimony

and maintenance under S. 25 of the Hindu Marriage Act, 1955.

On appeal, the High Court held that an application under S.

25 was not

955

maintainable as the matrimonial court at amritsar had not

passed any decree for restitution of conjugal rights,

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judicial separation, nullity or divorce. Sequelly it

quashed the order under S. 24 of the Act.

Dismissing the appeal, this Court

HELD:The right of permanent maintenance in favour of the

husband or the wife is dependent (in the Court passing a

degree of the kind envisaged under Ss. 9to 14 of the Act.

In (other words, without the marital status being affected

or disrupted by the matrimonial court under the Hindu

Marriage Act the claim (of permanent alimony was not to be

valid as ancilliary or incidental to such affectation or

disruption.

Kadia Martial Purshotham v. Kadia Lilavati Gokaldas AIR 1961

Guj 202; Shantaram Gopalshet Narkar v. Hirabai, AIR 1962 Bom

27 Minarani Majumdar v. Dasarath Majumdar AIR 1963 Cal 428;

Shantaram Dinkar Karnik v. Malti Shantaram Karnik AIR 1964

Bom 83; Akasam Chinna Babu v.Akasam Parbati, AIR 1967 Ori

163; Gurcharan Kaur v. Ram Chand, AIR 1979 P & H 206;

Darshan Singh v. Mst. Daso., AIR 1980 Raj 102; Smt.

Sushama v. Satish Chander, AIR 1984 Del 1; Vinod Chandra

Sharma v. Smt. Rajesh Pathak, AIR 1988 All 150 and

Ranganatham v. Shyamala AIR 1990 Mad 1, affirmed.

Smt. Swaran Lata v.Sukhvinder Kumar (1986) 1 Hindu LR 363;

Sadanand Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR

1989 Bom 220; Surendra Singh Chauhan v. Mamta Chauhan, 11

1990 Divorce & Matrimonial Cases 208; Modilal kalaramji Jain

v. Lakshmi Modilal Jain AlR 1991 Bom 440; and Shilla

Jagannadha Prasad v. Smt. Shilla Lalitha Kumari 1988 Hindu

LR 26, overruled.

Durga Das v. Smt. Tara Rani, AIR & H 141, referred to.

2.A Court intervening under the Hindu Marriage Act

undoubtedly has the power to grant permanent alimony or

maintenance, if that power is invoked at the juncture when

the marital status is affected or disrupted. It also

retains the power subsequently to be invoked on application

by a party entitled to relief. A nd such order, in all

events, remains within the jurisdiction of that court, to be

altered or modified as future situations may warrant.

3.While sustaining her marriage and preserving her marital

status, a Hindu wife's claim to maintenance is codified is

S.18 of the Hindu Adoptions

956

and Maintenance Act, 1956 and must necessarily be agitated

thereunder.

4.The court is not at liberty to grant relief of maintenance

simplicitor obtainable under one Act in proceedings under

the other. As is evident, both the statutes are codified as

such and are clear on their subjects and by liberality of

interpretation inter-changeability cannot be permitted so as

to destroy the distinction on the subject of maintenance.

Carew, & Co. v. Union of India [1975] 2 SCC 791 and Motor

Owners' Insurance Co. Ltd. v. Jadavjit Keshavji Modi [1981]

4 SCC 660, referred to.

5.When distinctive claims are covered distinctly under two

different statutes, choosing of one forum or the other, are

not mere procedural technicalities or irregularities. These

are matters which go to the root of the jurisdiction. The

matrimonial court, a court of special jurisdiction. is not

meant to pronounce upon a claim of maintenance without

having to go into the exercise of passing a decree which

implies that unless it goes onwards, Moves or leads through,

to affect or disrupt the marital status between the parties.

By rejecting a claim, the matrimonial court does make an

appealable decree. in terms of section 28, but neither

affects nor disrupts the marriage. It certainly does not

pass a decree in terms of section 25 for its decision has

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not moved or done anything towards, or led through, to

disturb the marriage, or to confer or to take away any legal

character or status.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2653-54 of

1991.

From the Judgment and Order dated 15.2.91 of the Punjab and

Haryana High Court in Civil Revision Nos. 2998 and 2919 of

1990.

D.V. Sehgal and N.K. Aggarwal for the Appellant.

G.L, Saghi, P.P. Tripathi and Suchinto Chatterji for the

Respondent.

The Judgment of the Court was delivered by

PUNCHHI, J. The point which requires determination in these

two appeals, arising from a common judgment and order dated

February 15, 1991 of a Division Bench of the Punjab and

Haryana High Court at Chandigarh, in Civil Revision Nos.

2918 and 2919 of 1990 is, whether the payment of alimony is

admissible

957

without the relationship between the spouses being

terminated.

The wife-appellant was married to the husband-respondent on

September 19,1972 at Amritsar, in the State of Punjab.

Three children were born from the wed lock and are at

present living with their father. Out of them two are

males, their respective years of birth being 1973 and 1980

and the third is a female born in the year 1976. On 28-8-

1985 a petition under section 13-B of Hindu Marriage Act,

1955 (hereafter referred to as the Act') seeking divorce by

mutual consent was received by the court of the Additional

District Judge, Amritsar purported to have been failed

jointly by the two spouses. It was stated therein that the

parties had been living separately for over a year due to

incompatibility of temperament and their effort to settle

their differences amongst themselves, or with the aid of

friends and relatives, had been futile. On receipt the

petition was kept pending, as was the requirement of section

13-B of the Act. According to the wife she was not a

consenting party to the filing of such petition at all. Her

version was that the husband had duped her in obtaining her

signatures on blank papers on a false pretext and in turn

had employed those papers in the said petition for divorce.

On coming to know of the pendency of the petition, she

immediately filed objections before the court, obstructing

the grant of petition. The respective pleas of the parties

were put to issue and evidence was led. According to the

wife some understanding later was reached between the

parties on the basis of which she was to be put back in the

matrimonial home and thus the petition was got dismissed on

19-8-1987, on the basis of the joint statement of the

parties before the Additional District Judge, Amritsar which

was to the following effect:

"We agree that applications under sections 24

and 25 of Hindu Marriage Act may be dismissed.

We also agree that since the parties have not

been able to make a joint statement within a

period of six months of the original petition,

the main petition under section 13B of the

Hindu Marriage Act may be dismissed.

Otherwise too, the parties to the marriage do

not want to proceed with their main

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application under section 13 of the Hindu

Marriage Act and the same be also dismissed

and the parties may be left to bear their own

costs.

On the basis of the above statement, the court passed the

following order, the same day:

"The applicant and counsel for the parties

have made their statements recorded separately

the main petition under section 13 and

958

also applications under sections 24 and 25 of

the Hindu- marriage Act are dismissed as

withdrawn. The parties are left to bear their

own costs. The file be consigned."

It appears that the dismissal of the petition under section

13-B led only to a temporary truce, and not peace as hoped.

Rehabilitation in the matrimonial home evaded the wife. The

husband, who in the meantime had established his business at

Ghazibad in Utter Pradesh, barely three months after the

dismissal of the petition under section 13-B. approached the

District Court at Ghaziabad in a regular petition for

divorce under section 13 of the Act levelling, amongst

others, allegations of adultery against the wife. To meet

the offensive the wife refuted the charge of adultery and

prayed to the Ghaziabad Court grant of maintenance pendente

lite, which the Court fixed at Rs. 1000 per month. It

appears since the husband had obstacled payment of

maintenance pendente lite, divorce proceedings stand stayed

under orders of the High Court of Allahabad, until the order

of grant of maintenance pendente lite was obeyed. The

matter thus stands stagnated there.

The wife then went in an offensive. She moved the court of

Additional District Judge, Amritsar on 22-3-1990, under

section 15 of the Hindu Marriage Act for the grant of

permanent alimony on the plea that she was facing

starvation, when her husband was a multi-millionaire, having

cars, telephone facilities and other amenities of life.

Simultaneously she moved the court under section 24 of the

Hindu Marriage Act for maintenance pendente lite and

litigation expenses. After a grim contest between the

parties the Additional District Judge, Amritsar on September

20, 1990 allowed the petition under section 24 of the Act

granting her a sum of Rs. 6000 as litigation expenses and

Rs. 2000 per month as maintenance pendente lite, from the

date of application. The husband challenged the said order

of grant in revision before the High Court of Punjab and

Haryana at Chandigarh. The wife too approached the High

Court in revision seeking enhancement of sums under both

counts. Both the revision petitions being referred to a

larger bench were disposed of by the common judgment under

appeal sustaining the objection of the husband that an

application under section 25 of the Act was, in the facts

and circumstances, not maintainable; the Matrimonial Court

at Amritsar, in the earlier litigation, having not passed

any decree of the variables known as Restitution of Conjugal

Rights, Judicial Separation, Nullity of Marriage, or

Divorce, so as to quash proceedings under section 25 and

sequally quashing the order under section 24 of the Act

granting litigation expenses and maintenance pendente lite.

Hence these appeals.

959

Section 25 of the Act, as it now stands, after amendment by

Act 68 of 1976 is reproduced hereunder:

"25 PERMANENT ALIMONY AND MAINTENANCE (1) Any

court exercising jurisdiction under this Act

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may, at the time of passing- any decree or at

any time subsequent thereto, on application

made to it for purpose by either the wife o

r

the husband, as the case may be, order that

the respondent shall pay to the applicant for

her or his maintenance and support such cross

sum or such monthly or periodical sum for a

term not exceeding the life of the applicant

as, having regard to the respondent's own

income and other property, if any, the income

and other property of the applicant, [the

conduct of the parties and other circumstances

of the case], it may seem to the court to be

just, and any such payment may be secured, if

necessary, by a charge on the immovable

property of the respondent.

(2)If the court is satisfied that there is, a

change in the circumstances of either party at

any time after it has made an order under sub-

section (1), it may at the instance of either

party, very, modify or rescind any such order

in such manner as the court may deem just.

(3)If the court is satisfied that the party in

whose favour an order has been made under this

section has remarried or, if such party is the

wife, that she has not remained chaste, or, if

such party is the husband, that he has had

sexual intercourse with any woman outside

wedlock, [it may at the instance of the other

party very, modify or rescind any such order

in such manner as the court may deem just]."

It is relevant to reproduce Section 28 as

well:

"28 APPEAL FROM DECREES AND ORDERS- (1) All

decrees made by the court in any proceeding

under this Act shall, subject to the

provisions of sub-section (3) be appealable as

decrees of the court made in the exercise of

its original civil jurisdiction, and every

such appeal shall lie to the court to which

appeals ordinarily lie from the decisions of

the court given in the exercise of its

original civil jurisdiction.

(2) Orders made by the court in any

proceeding under this Act, under

960

section 25 or Section 26 shall, subject to the

provisions of sub-section (3), be appealable

if they are not interim orders and every such

appeal shall lie to the court to which appeals

ordinarily lie from the decisions of the court

given in exercise of its original civil

jurisdiction.

(3) There shall be no appeal under this

section on the subject of costs only.

(4) Every appeal under this section shall be

preferred within a period of thirty days from

the date of the decree or order."

Right from its inception, at the unamended stage, the words

"at the time of passing any decree or any time subsequent

thereto" posed difficulty. The majority of the High Courts

in the country took the view that those words indicated that

an order for permanent alimony or maintenance in favour of

the wife or the husband could only be made when a decree is

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passed granting any substantive relief and not where the

main petition itself is dismissed or withdrawn. It was also

gathered that if no request for alimony was made at the time

of passing the decree the same relief could be sought

subsequently on an application. The relief of permanent

alimony was deduced to be ancilliary or incidental to the

substantive relief, and it was given to the party to whom

such relief was due. The expression "any decree" was viewed

to have been used having regard to the various kinds of

decrees such as decree for Restitution of Conjugal Rights,

Judicial Separation, Nullity of Marriage, and Divorce, which

could be passed either on contest or consent. Some of the

High Courts also had occasion to distinguish between the

expression "passing any decree" referred to in section 25

(1) with "decrees made" referred to in section 28 providing

for appeals from decrees and orders made by the Court in any

proceeding under the Act, and such decrees being appealable,

as decrees of the Court made in exercise of its original

civil jurisdiction. It led to the determination of the

question whether the denial of relief under the Act, when

making a decree in the sense appealable under section 28,

could be it a decree passed within the meaning of Section 25

entitling the respective spouses to claim permanent alimony

thereunder. On this question too there has been rife a

difference of opinion.

A Division Bench of the Gujarat High Court in Kadia Harilal

Purshottam v. Kadia Lilavati Gokaldas AIR [1961] Gujarat

202; ruled that the words "at the time of passing any decree

or any time subsequent thereto" occurring in section 25

meant passing of any decrees of the kind referred to in the

earlier provisions of the Act and not at the time of

dismissing the petition for any relief provided in those

961

sections, or any time subsequent thereto. It was viewed

that the expression "any decree" did not include an order of

dismissal and that the passing of an order of dismissal of

the petition could not be regarded as the passing of decree

within the meaning of section 25. On that view a petition

for permanent alimony preferred by the wife was dismissed

when the petition of the husband for restitution of conjugal

rights had been dismissed.

In Shantaram Gopalshet Narkar v. Hirabai, AIR [1962] Bombay

27 Vol. 49, a learned Single Judge of the Bombay High Court

took the view that in order to confer jurisdiction upon the

court to proceed under section 25(1) there must be a decree

as contemplated under the Hindu Marriage Act and one of the

decrees can. be under section 10(1) (B). And when the

petition was allowed to be withdrawn, there was no decree

passed in favour of the husband, and if there was no decree,

the court had no jurisdiction to pass any order granting

permanent alimony to the wife under section 25(1).

In Minarani Majumdar v. Dasarath Majumdar AIR [1963]

Calcutta 428 Vol. 50, a Division Bench of the Calcutta High

Court ruled that an order dismissing a petition by the

husband for divorce under section 13 is not a decree within

the meaning of section 25 and as such when no substantive

relief is granted under sections 9 to 14, there is no

passing of a decree as contemplated by section 25 and hence

no jurisdiction to make an order for maintenance under the

said section. Harilal's case (supra) of the Gujarat High

Court was noticed and relied upon.

A learned Single Judge of the Bombay High Court in Shantaram

Dinkar Karnik v. Malti Shantaram Karnik, AIR [1964] Bombay

83 - vol. 51 relying on the earlier decision of that court

in Shantaram Gopalshet's case (supra) and kadia Hiralal's

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case (supra) reaffirmed the view that the expression

"passing of any decree" only referred to passing of any

decrees provided for in section 9 to 13 of the Act, even

though technically speaking dismissal of a suit or a

petition may be called a decree but not for the purpose of

section 25 confering jurisdiction on the Matrimonial Court

to grant permanent alimony.

A Division Bench of the Orissa High Court in Akasam Chinna

Babu v. Akasam Parbati & Another AIR [1967] Orissa 163 -

Vol. 54 denied the relief of permanent alimony when the

petition for divorce of the husband had been dismissed. The

views of the Bombay High Court and the, Gujarat High Court

above referred to were taken in aid to get to that view.

A three-Judge full bench of the Punjab and Haryana High

Court in Durga

962

as v. Smt. Tara Rani,AIR (1971) Punjab and Haryana 141 -

Vol. 58, in a different context, while determining the

question whether a party to a decree or divorce could apply

for maintenance under sub-section (1) of section 25 of the

Act after which decree has been granted, ruled that the

proceedings for grant of permanent alimony were incidental

to the main proceeding and as such an application for

alimony could be made even after the grant of the decree for

divorce.

A learned Single Judge of that Court, however, in Gurcharan

Kaur v. Ram chand AIR 1979 Punjab and Haryana 206 Vol. 66

even while relying, on the full bench decision afore-

referred went on to deny permanent alimony to the wife hose

claim for decree of Nullity of Marriage stood dismissed and

on that basis the petition for alimony was held not

maintainable.

In Darshan Singh vs. Mst. Daso AIR 1980 Rajasthan 102 -

Vol. 67 a learned single Judge of the Rajasthan High Court

made a distinction between the expression "passing any

decree" occurring in section 25 and the expression decree

made" under section 28. He viewed that the former

expression meant granting any relief of the nature stated in

sections 9 to 13 while the later meant granting or refusing

the relief. In other words, it meant that passing of any

decree as to mean granting any relief, and the making of any

decree was to mean granting or refusing any relief.

A Division Bench of the Delhi High court too in Smt. Sushma

v. Shri Satish Chander AIR 1984 Delhi 1 Vol. 71 taking stock

of the above-referred to views of the Rajasthan, Orissa.

Bombay, Calcutta and Gujarat High Courts affirmedly took the

view that the passing of the decree in section 25 meant the

passing of a decree of divorce, Nullity, Restitution of

Conjugal Rights or Judicial Separation and not the passing

of a decree dismissing the petition. It was further held

that if the petition fails then no decree is passed, i.e.,

the decree is denied to the applicant and therefore alimony

cannot be granted in a case where a decree is refused

because in such a case the marriage subsists. The word

"decree" in matrimonial cases was held to have been used in

a special sense different from that in which it is used in

the Civil Procedure Code.

Following Delhi High Court's decision in Sushma's case

(supra), a learned Single Judge of the Allahabad High Court

in Vinod Chandra Sharma v. Smt. Rajesh Pathak AIR 1988

Allahahad 150 - Vol. 75 opined that when an application for

divorce is dismissed, there is no decree passed and

obviously therefore alimony cannot he granted because in

such a case the marriage subsists.

963

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A learned Single Judge of the Madras High Court in

Ranganatham v. Shyamla AIR 1990 Madras 1- Vol. 77 too

following the above decisions held that the existence of any

of the decrees referred to in sections 9 to 13 is a

condition precedent to the exercise of jurisdiction under

section 25 (1) of the Act and the granting of ancilliary

relief for permanent alimony and maintenance, when the main

petition was dismissed, was not permissible.

A divergent view, however, was struck by a learned Single

Judge of the Punjab and Haryana High Court in Smt. Swaran

Lata v. Sukhvinder Kumar(1986) 1 Hindu Law Reporter 363

taking the view that when the rights of the parties stand

determined conclusively with regard to matters in

controversy, irrespective as to whether relief is granted or

not, it culminates in a decree and on the basis of that

decree, the wife would be entitled to claim maintenance or

permanent alimony under section 25 of the Act. Not only was

on such interpretation of sections 25 and 28 the view taken

but liberality of interpretation was injected to justify the

view. It was expressed that when the right of the wife to

maintenance was assured under section 125 of the Code of

Criminal Procedure, 1973 and section 18 of the Hindu

Adoptions and Maintenance Act, 1956 and when that right of

the wife was not being disputed, the court, in order to

avoid multiplicity of proceedings could give effect to that

right, wherever possible, in a proceeding under section 25

of the Act itself. There the objection of the husband to

the jurisdiction was termed as technical and the

maintainability of claim under section 25 was upheld.

A learned Single Judge of the Bombay High Court in Sadanand

Sahadeo Rawool v. Sulochana Sadanand Rawool, AIR 1989 Bombay

220- Vol. 76 also took a similar view and based his decision

on "necessity of the times" expressing that technicalities

should not be allowed to away any court. In the situation,

the dismissal of petition for divorce was held to be no bar

to grant maintenance under section 25 to the successful

spouse.

Then in Surendra Singh Chaudan v. Mamta Chauhan II(1990)

Divorce & Matrimonial Cases 208 a learned Single Judge of

the Madhya Pradesh High Court taking the view that the

dismissal of a petition amounts to passing of a decree for

the purposes of Section 25 of the Act held that claim for

permanent alimony was maintainable. The learned Judge ruled

that there appeared to be no justification for curtailing

the ambit of the words to go on to hold that a decree is not

a "decree" for the purposes of section 25 of the Act, though

a "decree" for the purposes of section 28 of the Act. Here

again the intention of the legislature was gathered avoiding

multiplicity of proceedings. so that every dispute between

the parties, particularly connected with matters like

maintenance etc. should be settled in the

964

same proceedings.

A learned Single Judge of the Bombay High Court in Modilal

Kalaramji Jain v. Lakshmi Modilal Jain AIR 1991 Bombay 440 -

Vol. 78 omitting the word "passing" from the expression,

interpreted the expression "any decree" to include an order

refusing to grant matrimonial relief and on that basis held

adjudication of claim of permanent maintenance to be within

the jurisdiction of the matrimonial court.

Same is the view of the Andhra Pradesh High Court in Shilla

Jagannadha Prasad alias Ram v. Smt. Shilla Lalitha Kumari

[1988] 1 Hindu Law Reporter 26 and some other cases which

need not be multiplied.

The preamble to the Hindu Marriage Act suggests that it is

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an Act to amend and codify the law relating to marriage

among Hindus. Though it speaks only of the law relating to

marriage, yet the Act itself lays down rules relating to the

solemnization and requirements of a valid Hindu marriage as

well as Restitution of Conjugal Rights, Judicial Separation,

Nullity of Marriage, Divorce, legitimacy of children and

other allied matters. Where the statute expressly codifies

the law, the court as a general rule, is not at liberty to

go outside the law so created, just on the basis that before

its enactment another law prevailed. Now the other law in

the context which prevailed prior to that was the unmodified

Hindu law on the subject. Prior to the year 1955 or 1956

maintenance could be claimed by a Hindu wife through court

intervention and with the aid of the case law developed.

Now with effect from December 21, 1956, the Hindu Adoptions

and Maintenance Act is in force and that too in a codified

form. Its preamble too suggests that it is an Act to amend

and codify the law relating to adoptions and maintenance

among Hindus. Section 18 (1) of the Hindu Adoptions and

Maintenance Act, 1956 entitles a Hindu wife to claim

maintenance from her husband during her life-time. Sub-

section (2) of section 18 grants her the right to live

separately, without forfeiting her claim to maintenance, if

he is guilty of any of the misbehaviours enumerated therein

or on account of his being in one of objectionable

conditions as mentioned therein. So while sustaining her

marriage and preserving her marital status, the wife is

entitled to claim maintenance from her husband. On the

other hand, under the Hindu Marriage Act, in contrast, her

claim for maintenance pendente lite is durated on the

pendency of a litigation of the kind envisaged under

sections 9 to 14 of the Hindu Marriage Act, and her claim to

permanent maintenance or alimony is based on the supposition

that either her marital status has been strained or affected

by passing a decree for restitution of conjugal rights or

judicial separation in favour or against her, or her

marriage stands dissolved by a decree of nullity or divorce,

965

with or without her consent. Thus when her marital status

is to be affected or disrupted the court does so by passing

a decree for or against her. On or at the time of the

happening of that event, the court being siezen of the

matter, invokes its ancilliary or incidental power to grant

permanent alimony. Not only that, the court retains the

jurisdiction at subsequent stages to fulfil this incidental

or ancilliary obligation when moved by an application on

that behalf by a party entitled to relief. The court

further retains the power to chance or alter the order in

view of the changed circumstances. Thus the whole exercise

is within the gammit of a diseased of a broken marriage.

And in order to avoid conflict of perceptions the

legislature while codifying the Hindu 'Marriage Act

preserved the right of permanent maintenance in favour of

the husband or the wife, as the case may be, dependent on

the court passing a decree of the kind as envisaged under

sections 9 to 14 of the Act. In other words without the

marital status being affected or disrupted by the

matrimonial court under the Hindu Marriage Act the claim of

permanent alimony was not to be valid as ancilliary or

incidental to such affectation or disruption. The wife's

claim to maintenance necessarily has then to be agitated

under the Hindu Adoptions and Maintenance Act, 1956 which is

a legislative measure later in point of time than the Hindu

Marriage Act, 1955, though part of the same socio-legal

scheme revolutionizing the law applicable to Hindus.

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Section 41 of the Evidence Act inter alia provides that a

final judgment, order or decree of a competent court in the

exercise of matrimonial jurisdiction, which confers upon or

takes away from any person any legal character, or which

declares any person to be entitled to such character, is

relevant. And that such judgment, order or decree is

conclusive proof as to the conferral, accrual,or taking away

of such. legal character from a point of time as declared by

the court. Such judgments are known as judgments in rem,

binding the whole world. But the judgment of that kind must

have done something positive, onwards. This provision is

indicative of the quality of matrimonial jurisdiction.

We have thus, in this light, no hesitation in coming to the

view that when by court intervention under the Hindu

Marriage Act, affection or disruption to the marital status

has come by, at that juncture, while passing the decree, it

undoubtedly has the power to grant permanent alimony or

maintenance, if that power is invoked at that time. It also

retains the power subsequently to be invoked on application

by a party entitled to relief. And such order, in all

events, remains within the jurisdiction of that court, to be

altered or modified as future situations may warrant. In

contrast, without affectation or disruption of the marital

status, a Hindu wife sustaining` that status can live in

separation from her husband, and

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whether she is living in that state or not, her claim to

maintenance stands preserved in codification under section

18 (1) of the Hindu Adoptions and Maintenance Act. The

court is not at liberty to grant relief of maintenance

simplicitor obtainable under one Act in proceedings under

the other. As is evident, both the statutes are

codified as such and are clear on their subjects and by

liberality of interpretation inter-changeability cannot be

permitted so as to destroy the distinction on the subject of

maintenance.

Relief to the wife may also be due under section 125 of the

Code of Criminal Procedure whereunder an order of

maintenance can be granted after contest, and an order of

interim maintenance can be made at the outset, without much

contest. This provision however has two peculiar features:

(i) the provision applies to all and not only to Hindus;

and

(ii) maintenance allowance cannot exceed a sum of Rs. 500

per mensem.

But this is a measure in the alternative to provide

destitute wives.

This court has ruled that if the language used in a statute

can be construed widely so as to salvage the remedial

intendment, the court must adopt it. Of course, if the

language of a statute does not admit of the construction

sought, wishful thinking is no substitute, and then, not the

court but the legislature is to blame for enacting a damp

squib statute. These are the observations of V.K. Krishna

Iyer, J. in Carew and Company v. Union of India [1975] 2 SCC

791 at pages 803-804. Towards interpreting statutes, the

court must endeavour to see its legislative intendment.

Where the language is ambiguous or capable of more than one

meaning, the court must sympathetically and imaginatively

discover the true purpose and object of the Provision by

filling gaps, clearing doubts, and mitigating hardships,

harshness or unfair consequences. See Motor Owners'

Insurance Company, Limited vs. Jadavji Keshavji Modi and

others [1981] 4 SCC 660 paras 14. 15 and 16. These

principles were pressed into service by learned counsel for

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the appellant contending that if the claim of the wife for

maintenance was otherwise justified on fact and law, the

procedures and the for a should not stand in her way and let

her cash on her claim over-ruling all objections. It was

asserted that the Amritsar court had jurisdiction to grant

relief, as asked for, because once upon a time it was seisin

of the petition for dissolution of marriage by mutual

consent, though such petition was withdrawn.

On the afore-analysis and distinction drawn between the fora

and perceptives,

967

it is difficult to come to the view that a claim which is

ancilliary or incidental in a matrimonial court under the

Hindu Marriage Act could be tried as an original claim in

that court; a claim which may for the moment be assumed as

valid, otherwise agitable in the civil court under the Hindu

Adoptions and Maintenance Act, 1956. As said before, these

two enactments keeping apart, the remaining two, i.e., Hindu

Succession Act, 1956 and Hindu Minority and and Guardianship

Act, 1956 are a package of enactments, being part of one

socio-legal scheme applicable to Hindus. When distinctive

claims are covered distinctly under two different statutes

and agitable in the courts conceived of thereunder, it is

difficult to sustain the plea that when a claim is otherwise

valid, choosing of one forum or the other should be of no

consequence. These are not mere procedural technicalities

or irregularities, as termed by one line of reasoning by

some of the High Courts. These are matters which go to the

root of the jurisdiction. The matrimonial court, a court of

special jurisdiction, is not meant to pronounce upon a claim

of maintenance without having to go into the exercise of

passing a decree, which implies that unless it goes onwards,

moves or leads through, to affect or disrupt the marital

status between the parties. By rejecting a claim, the

matrimonial court does make an appealable degree in terms of

section 28, but neither affects nor disrupts the marriage.

It certainly does not pass a decree in terms of section 25

for its decision has not moved or done anything towards, or

led through, to disturb the marriage, or to confer or take

away any legal character or status. Like a surgeon, the

matrimonial court, if operating, assumes the obligation of

the post operatives, and when not, leaves the patient to the

physician.

On the afore analysis we have been led to the conclusion

that the step of the wife to move the court of Additional

District Judge, Amritsar for (,rant of maintenance under

section 25 of the Hindu Marriage Act was ill-advised. The

judgment of the High Court under appeal could be no other

than the one that it was in the present state of law and the

facts and circumstances. It is still open to the wife to

stake her claim to maintenance in other fora. The judgments

of the High Courts earlier quoted, and others which have

been left out, which are not in line with our view are over-

ruled. The earlier and predominant view was the correct one

and the later an aberration; something unfortunate from the

precedential point of view. The appeals thus inevitably

have to and are hereby dismissed, but without any order as

to costs.

Before we part with this judgment, we need to mention that

while this judgment was reserved, an Interlocutory

Application was received by the Registry, which unnumbered

Interlocutory Application was duly transmitted to us. It is

for directing the appellant to pay arrears of

maintenance.While granting leave

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this Court on 8th July, 1991 had ordered that during the

pendency of the appeal, but without prejudice to the

respective stands of the spouses, the husband shall pay a

sum of Rs. 1000 per mensem by way of maintenance to the wife

month to month by bank draft. In the Interlocutory

Application there is an allegation that this Court's orders

have not been complied with. Let notice on the application

separately be issued to the respondent returnable within six

weeks to show cause why payment of arrears of maintenance be

not secured to the wife forthwith.

U.R. Appeal dismissed.

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