T.U. Mehta, J.
1. The question which arises to be considered in this revision application is whether a Hindu wife, who has obtained a decree for judicial separation under the Hindu Marriage Act, (hereafter referred to as the 'said Act') should proceed only under Section 25 of the said Act with a view to get maintenance or it is open to her to file a separate suit for obtaining maintenance without pursuing her remedies for the same under the said Section 25.
2. The short facts of the case are that the petitioner of this revision application is married with opponent on 24th January, 1964. In the year 1971 the opponent-wife filed Hindu Marriage Petition No. 12/71 against the petitioner-husband for obtaining a decree for judicial separation. It is an admitted position that this petition was filed on 1st February, 1971 and it was disposed of on 15th April, 1971 when a decree for judicial separation was passed in favour of the opponent-wife. It appears that during the pendency of that petition no orders of maintenance pendente lite were passed by the court under Section 24 of the Act. It is also an admitted position that neither at the -time of passing the said decree of judicial separation nor at any time thereafter, orders of permanent alimony and maintenance contemplated by Section 25 of the said Act have been passed by the court.
3. The opponent-wife has however filed civil suit No. 2024 of 1971 in the City Civil Court, Ahmedabad for obtaining a decree of past as well as future maintenance. The claim of past maintenance amounts to Rs. 8975/-and covers the period from 29th April, 1968 to 17th of 1 August, 1971.
4. This suit of the opponent-wife is resisted by the petitioner-husband. On 3rd April, 1972 the petitioner-husband presented one application in the court raising a contention that the disputes raised by him in paras 7 and 10 of his written statement, are the disputes relating to law and issues arising therefrom should, therefore, be treated as preliminary issues. These issues are as under:
(1) Is the suit not maintainable on the grounds that the petitioner has not claimed alimony pendente lite in H. M. P. No. 12 of 1971, and on the ground that she had not claimed permanent alimony, under Section 25 of the Hindu Marriage Act, in the said petition ?
(2) Whether the claim of the plaintiff for maintenance is barred by res-judicata or is barred by the principles analogous to res-judicata.
These issues being purely of law and going to the root of the question, were treated by the trial court as preliminary issues.
5. On both these issues it was contended on behalf of the petitioner-husband' that from the date of the decree for judicial separation passed in favour of the plaintiff-wife she has ceased to be wife of the defendant-husband and, therefore, she would not be entitled to any decree for maintenance. A further contention, which appears to have been raised during the course of arguments before the trial court was, that if plaintiff-wife had any right to claim maintenance, the same was only under Section 25 of the Hindu Marriage Act. This latter contention does not seem to have been elaborated by the learned advocate who appeared on behalf of the petitioner in the trial court. But from the judgment of the trial court, which is sought to be revised, it appears that the only contention which was argued at length by the learned advocate, of the petitioner, was that since there was a decree for judicial separation between the parties, the plaintiff ceased to be a wife and, therefore, she was not entitled to any maintenance. This contention, being on the face of it without any substance, was rejected by the trial court and is not pressed during the course of this revision application.
6. Shri Shah, who appeared on behalf of the petitioner-husband, however, contended that looking to the scheme of the Hindu Marriage Act, 1955, the opponent ought to have applied for maintenance pendente lite under the provisions of Section 24 of the Act during the pendency of Hindu Marriage Petition No. 12/71 and since it is an admitted position that she has not done so, her present prayer for obtaining maintenance would be barred by res-judicata. He further contended that the scheme of the Act further reveals that after the parties to a marriage have obtained a decree under the provisions of the Act, the remedy for obtaining maintenance is confined only to the provisions contained in Section 25 of the Act, and therefore, a suit for obtaining maintenance filed either under the general provisions of the Hindu Law or under the provisions of Hindu Adoptions and Maintenance Act, 1956, is not maintainable. For the reasons which follow, I am of the opinion that both these contentions of Shri Shah should fail.
7. So far as Section 24 of the Act is concerned, a bare perusal of thereof shows that it is meant to give some interim relief to the husband or the wife, as the case may he, provided be or she has no independent income sufficient for his or her support and necessary expenses of the proceedings. The bare perusal of the provisions contained in Section 24 of the Act shows that these provisions are not meant to give full and final maintenance to the party concerned, because, the orders under this section can be passed only if the party concerned has no independent income sufficient for his or her 'support'. The word 'support' shows that the amount of maintenance which the court would award pendente lite, would not necessarily be the amount of maintenance which a wife would ordinarily be entitled to get under the general provisions contained in Hindu Law or the provisions contained in Hindu Adoptions and Maintenance Act, 1956. Therefore, if the opponent-wife has not thought it fit to avail of the provisions of Section 24 during the pendency of Hindu Marriage Petition No. 12/ 71, it cannot be said that her present suit for obtaining maintenance is barred by any principle analogous to the principle of res-judicata. If the wife thought that she had sufficient income necessary for her support during the pendency of the petition, she was not bound to request the court to award her any maintenance during the pendency of that petition. Under the circumstances, if she has not availed of any interim relief during the pendency of the petition, her substantive right to claim maintenance under the general provisions of law would not be affected.
8. Shri Shah then contended that Section 25 of the Act provides for an order of permanent alimony and maintenance either at the time of passing a decree or at any time subsequent thereto. According to Shri Shah therefore if the opponent-wife wants to claim any maintenance, she having obtained a decree for judicial separation under the provisions of the Act, should seek her remedy only under the provisions of this section and not by instituting any separate suit for obtaining maintenance under the provisions of the Hindu Adoptions and Maintenance Act. According to Shri Shah, the Hindu Marriage Act is a complete code which seeks to codify all the rights, liabilities and obligations arising from a matrimonial tie and looking to the provisions of Section 4 it is apparent that this Act has an overriding effect over all other laws relating to the subject. He further contended that Section 25 of the Act comes into play either at the time of passing a decree under the provisions of the Act or at any time subsequent thereto and, therefore, if a particular party avails of the provisions of the Act and obtains a decree in his or her favour, then the amount of permanent alimony and maintenance can be obtained only under Section 25 of the Act. Shri Shah, therefore, contended that as the suit out of which this revision application arises is not the one which is falling under the provisions of Section 25 of the Act, the same is not maintainable.
9. In my opinion this contention of Shri Shah is not acceptable. In order to appreciate this contention, it should be borne in mind that even before the Hindu Marriage Act, 1955 was passed, a wife was entitled to maintenance from her husband under the provisions of uncondified Hindu Law. This right was subsequently regulated by Hindu Married Women' Right to Separate Residence and Maintenance Act, 1946. That Act has now been repealed by Section 29 of the Hindu Adoption and Maintenance Act, 1956. Section 18 thereof lays down that a Hindu wife, whether married before or after the commencement of the Act, is entitled to be maintained by her husband during her life time unless she is unchaste or ceases to be a Hindu by conversion to another religion. This Hindu Adoption and Maintenance Act, 1956 came into existence subsequent to the passage of Hindu Marriage Act, 1955. Therefore before Section 25 of the Hindu Marriage Act, 1955 came into existence, the right of a Hindu wife to obtain maintenance was regulated by Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946. In other words, the right of a Hindu wife to obtain a maintenance from her husband was already in existence before the Act came into force. Now the question is what was the effect of the Act on this right. In other words, did the Act take away the right of a Hindu wife to claim maintenance from her husband. Section 4 of the Act, upon which reliance is placed by Shri Shah, is in the following terms:
Save as otherwise expressly provided in this Act,
(a) any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
It is apparent that it is Clause (b) of this section, which is relevant to the facts of this case, because, Clause (a) has no application inasmuch as here we are not concerned with any text, rule or interpretation or usage of Hindu Law. Clause (b) provides for the measure of the effect of any other law in force immediately before the commencement of the Act only if and to the extent to which it is inconsistent with any of the provision of the Act. Therefore, the question is whether the wife's right to obtain maintenance from her husband, which she derived from Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946, was in any manner inconsistent with any of the provisions contained in Section 25 of the Act. Now Section 25 of the Act is found to be in the following terms:
25. Permanent alimony and maintenance: (1) Any court exercising jurisdiction under this Act, may at the time of passing any decree or at any time subsequent thereto on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall, while the applicant remains unmarried, pay to the applicant for her or his maintenance and support such gross 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 and the conduct of the parties, it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the irremovable 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, vary, 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 shall rescind the order.
On proper analysis this section shows that it provides for the maintenance and support of wife as well as the husband, having regard to the other spouse's income and property. This right of maintenance can be exercised under this section by any of the two sides even if a decree for divorce, which puts an end to the matrimonial tie, has been passed by the court. Thus, this section makes two main departures from the provisions as regards maintenance found in uncondified Hindu Law as well as Hindu Married Woman's Right to Separate Residence and Maintenance Act, 1946. The first departure is that while under the Hindu Law the husband was not entitled to maintenance against his wife, Section 25 gives that right to the husband provided other conditions stipulated by that section are satisfied and (2) neither under Hindu Law nor under Hindu Married Women's Right to Separate Residence and Maintenance, 1946, a divorcee would be entitled to any maintenance against her husband, because, the moment she gets a divorce, she ceases to be a wife of the person with whom she was married. But under provisions of Section 25 if a decree for divorce is obtained by a wife against her husband, she would be entitled to permanent alimony and maintenance inspite of the fact that her matrimonial ties have came to an end.
10. This analysis of Section 25 shows that the right of a wife to obtain maintenance from her husband has not, in any manner, been abrogated, but on the contrary, it has been enlarged upon inasmuch as even a divorced wife can claim maintenance under that section from her divorced husband. It is, therefore, not possible to contend successfully that Section 25 of the Act contains anything which militates or which is inconsistent with any of the rights of a Hindu wife to obtain maintenance from her husband as visualised by uncondified Hindu Law or by Hindu Married Women's Right to Separate Residence and Maintenance Act, 1964. In my opinion, therefore, Section 4 of the Act does not help the petitioner in any manner.
11. Shri Shah then contended that since the opponent-wife in this case has obtained a decree under the provisions of the Act, she can avail of her remedy to obtain maintenance only under the provisions of Section 25 and not under any other provisions of law. According to Shri Shah since the Hindu Marriage Act, 1955 is a complete enactment which provides for the-remedies, the opponent-wife should seek her remedy for obtaining maintenance only under the provisions of this Act. This argument is not acceptable for the simple reason that the right of the opponent-wife to obtain maintenance from her husband has not arison for the first time, on account of the provisions of Hindu Marriage Act, 1955, because this right for maintenance was already in existence and what Section 25 of the Act has done is merely to regulate and enlarge upon that right. In such cases the opponent-wife would have two remedies, one under the general provisions of law and the other under Section 25. It is for her to adopt and avail of any of these two remedies. This situation is completely covered by the following observations of Willes J. in Wolverhampton New Water Works Co. v. Hawkesford (1859) 6 C. B. (N.S.) 336 at page 356, which have now become locus classicus:
There are three classes of cases in which a liability may be established founded upon statute. One is, where there was liability existing at Common law, and that liability is affirmed by a statute which gives a special and peculiar form of remedy different from the remedy which existed at common law; there, unless the statute contains words which expressly or by necessary implication exclude the common law remedy, the party suing has his election to pursue either that or the statutory remedy. The second class of cases is, where the statute gives the right to sue merely but provides no particular form as remedy; there, the party can only proceed by action at common law. But there is a third class viz., where a liability not existing at common law is created by the statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.
12. These observations point out to three categories of cases. Out of these categories, the instant case falls within the first category, because, here the liability of the petitioner-husband to provide maintenance to his wife was already existing at common law but that liability has been affirmed by Section 25 of the Act which section gives additional and special form of remedy if she wants to avail of the same. That being the position, it cannot be said that because Section 25 of the Act provides for some special remedy in matrimonial cases, the wife's right to obtain maintenance under the general provisions of law is in any manner abrogated. It, therefore, follows that a Hindu wife is entitled to get maintenance from her husband not only under the general provisions of law which would govern her case but also under Section 25 of the Hindu Marriage Act, 1955. Both these remedies are open to her and it is for her to select a particular remedy. In this case she has selected a remedy by instituting a regular suit for maintenance. Since she is entitled to do so, it cannot be said that the suit is not maintainable. In my opinion, therefore, the learned trial Judge has rightly held in favour of the opponent-wife on both the preliminary issues.
13. This revision application accordingly fails and the same is dismissed with the costs.