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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 966 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 968

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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. 969