Very good judgement in fact i have saved it as PDF file for further reading
CHAND DHAWAN Vs. JAWAHARLAL DHAWAN
https://www.indiankanoon.org/doc/1162687/
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, judicial separation, nullity or divorce. Sequelly it quashed the order under S. 24 of the Act.
Held, where both statutes codified and clear on their subjects, liberality of interpretation cannot permit interchangeabil- ity so as to destroy distinction.
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 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.
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.
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.
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.
