Case: Smt. Chand Dhawan Vs. Jawaharlal Dhawan

2. The wife-appellant was married to the husband-respondent on September 19, 1972 at Amritsar, in the State of Punjab. There children were born from the wedlock and are at present living with their father. Out of them two are males, their respective years of birth being 1973 and 1980 the third is a female born in the year (sic). 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 filed 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 efforts 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 S. 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 deputed her in obtaining her signatures on blank papers on a false pretex 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 followingagree 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 S. 13-B of the Hindu Marriage Act may be dismissed. Otherwise too, the parties to the marriage do not want to proceed with their main application under S. 13 of the Hindu Marriage Act and the same be also dismissed and the parties may be left to bear their own costs."the basis of the above statement, the Court passed the following order, the sameapplicant and counsel for the parties have made their statements recorded separately, the main petition under S. 13 and 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 S. 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 Ghaziabad in Uttar Pradesh, barely three months after the dismissal of the petition under S. 13-B, approached the District Court at Ghaziabad in regular petition for divorce under S. 13 of the Act leveling, 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 pendent 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 there4. The wife then went in a offensive. She moved the Court of Additional District Judge, Amritsar on 22-3-1993, under S. 25 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 S. 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 S. 24 of the Act granting her 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 S. 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 s. 24 of the Act granting litigation expenses and maintenance pendente lite. Hence these appeals

Reasoning:
23. The preamble to the Hindu Marriage Act suggests that it is 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 courts as a general rule, is not al 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 uncodified 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 of Maintenance Act is in force and that too in a codified form. Its preamble too suggests that it is in Act to amend 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 misbehavior enumerated therein or on account of his being in one of objectionable conditions as mentions as mentioned therein. So while sustaining her marriage and preserving her material 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 Section 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, 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 siezed of the matter, invokes its ancillary or incidental power to grant permanent alimony. Not only that, the court retains the jurisdiction at subsequent stages to fulfill this incidental or ancillary obligation when moved by an application on the behalf by a party entitled to relief. The court further retains the power to change or alter the order in view of the changed circumstance". Thus the whole exercise is within the gamut of a diseased or 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 section 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 ancillary or incidental to such affection or disruption. The wifes claim to maintenance necessarily has taken 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 Hindus24. 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 jurisdiction25. 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 whether she is living in that state or not, her claim to maintenance stands preserved in codification under section 18(1) of the Hindu Adoption and Maintenance Act. The court is not at liberty to grant relief of maintenance simpliciter obtainable under one Act in Act in proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects and by liberty of interpretation interchargeability cannot be permitted so as to destroy the distinction on the subject of maintenance26. Relief to the wife may also be due under section 125 of the Code 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 peculiarthe 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 meansure in the alternative to provide destituteThis 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. R. Krishan Iyer, J. in Carew and Company v. Union of India, 1975 (2) SCC 791  at pages 803-804 : 1975 AIR(SC) 220 at p. 2270). Towards interpreting statutes, the court must endeavor 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 Owner Insurance Com. Ltd. v. Jadavji Keshvji Modi, 1981 (4) SCC 660 : 1981 AIR(SC) 2059), paras 14, 15 and 16. These principles were pressed into service by learned counsel for the appellant contending that if the claim of the wife for maintenance was otherwise justified on fact and law, the procedures and the fora 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 withdrawn28. On the afore-analysis and distinction drawn between the fora and perceptives, it is which is ancillary 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 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 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 juridiction. 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 material 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 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 operating, assumes the obligation of the post operatives, and when not leaves the patient to the physician29. 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 grant 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 our view are overruled. 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 costs30. 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 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 Courts 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