Sec.10 Hindu Marriage Act, 1955 not amended or abrogated by Sec.18(2) of HA&M Act, 1956.
The question for determination in one way is whether the provisions of Sec. 18(2) of the Hindu Adoptions and Maintenance Act can affect the matters provided for by Sec.10 of the Hindu Marriage Act.
Preamble to the Hindu Marriage Act describes it as one to amend and codify the law relating to marriage amongst Hindus. It is well known that when a particular branch of law is codified, it is intended and the object essentially is that on any matter specifically dealt with by that law, it should be sought for in the codified enactment alone when any question arises relating to that matter. Ordinarily, when it has been expressly stated that an enactment is meant for codifying the law, the Court is not at liberty to look to any other law. The Act not only amends but also codifies the law of marriage and it has made fundamental and material changes in the prior law. Section 4 of the Act gives overriding effect to its provisions. Therefore, unless in any other enactment there is a provision which abrogates any provision of the Act or repeals it expressly or by necessary implication, the provision of the Act alone will be applicable to matters dealt with or covered by the same. Sections 10 deals with judicial separation and once a decree for judicial separation has been granted, a decree for dissolution of marriage can be passed under Section 13(1-A), provided there has been no resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial separation. The Hindu Adoptions and Maintenance Act, 1956, hereinafter called the "Maintenance Act" also amended and codified the law relating to adoptions and maintenance among Hindus, Section 18(2) provides, inter alia, that the Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance if he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish or of willfully neglecting her or if he has any other wife living. Indeed, the last clause (g) of Sec. 18(2) is very general i.e., if there is any other cause justifying her living separately. Section 10 of the Hindu Marriage Act and Section 18 of the Maintenance Act are quite distinct, and one cannot be said to control the other. The former provision deals with the matrimonial offences by either spouse which would justify the grant of a decree for judicial separation. Section 18 provides that a Hindu wife shall be entitled to be maintained by her husband during her lifetime. Sub-section (2) gives her a right to live separately from her husband without forfeiting her claim to maintenance provided any of the conditions mentioned in clauses (a) to (g) exist or are specified. The essential ingredient of desertion, animus deserendi i.e., intention on the part of the deserting spouse to remain separated permanently or to bring cohabitation to an end for ever need not exist in the case of a wife who has been given the right to live separately in certain circumstances without forfeiting her claim to maintenance. The Hindu Marriage Act and the Maintenance Act provided different remedies to a wife whose husband has been guilty of desertion. This shows a sharp contrast in the provisions of the two enactments. It is quiteobvious that Section 18 of the Maintenance Act does not amend or abrogate the provisions of Section 10 of the Hindu Marriage Act. Section 4 of the Act gives overriding effect to its provisions. Therefore, unless in any other enactment there is a provision which abrogates any provision of the Act or repeals it expressly or by necessary implication, the provision of the Act alone will be applicable to matters dealt with or covered by the same. Section 10 of the Act deals with judicial separation and once a decree for judicial separation has been granted, a decree for dissolution of marriage can be passed under Section 13(1-A), provided there has been no resumption of cohabitation between the parties to the marriage for a period of two years or upwards after the passing of the decree for judicial separation. The Hindu Adoptions and Maintenance Act, 1956, in fact, amended and codified the law relating to adoptions and maintenance among Hindus.- Smt. Rohini Kumari v. Narendra Singh AIR 1972 SC 459
