The logic –
hma/HMA – hindu marriage act
hama/HAMA – hindu adoptions and maintenance act
hma was passed in 1955.
hama was passed in 1956.
before hma and hama, the way to get maintenance was to file for
maintenance in civil court and fight the case based on uncodified
personal laws and customery laws and through established
caselaws/judgements of courts etc.
the way to get interim maintenance was to file under section 488.
section 488 was a summary trial. it had a limit – probably Rs 100 to
start with in the initial days.
so there was a civil part of maintenancnce litigation and a criminal
part under section 488. the criminal part was only for interim
For the above reason, one can see multiple judgements which say –
decision of civil court will prevail over criminal court for
maintenance. The reason for this is that criminal section 488 was
only interim. civil maintenance was final. hence such statements in
multiple orders ( we will have to collect some of these to refer in
PIL. I have seen some of these but never bothered to keep them. a
search in some legal paid website can throw up some of these ).
then in 1955, hma came into being. it had a special section 24 for
interim maintenance. and a special section for permanent maintenance –
25 hma. It is clear from judgement jawaharlal dhawan that it is
clear and unambiguous that once any petition is filed from section 9
to section 14 of HMA, interim maitnenance will have to be under
this above is logic for not allowing to file any other maintenance
after any petition under section 9 to 14 hma is filed. law and
caselaw is clear on that.
once marriage is disrupted under section 9 to 14 hma, permanent
maintenance can only be given under section 25 – law is clear and
judgmeent also says so.
now on to hama. hama if one looks carefully does not have any
explicit section for interim maintenance. the hma which was passd
just a year before that had special section for interim maintenance.
its not that the law makers forgot to add interim maintenance under
hama. the whole funda before that was interim maintenance under
section 488. it was supposed tocontinue with hama also. so while
marriage subsisted, s 488 for interim, section 18 hama for civil
maintenance. this is what was the intention. thats why they did not
put any section for interim in hama.
in 1975/76, they put new crpc and put section crpc 125 which was
nothing but copy of s 488 of old crpc. so then also, interim by crpc
125, maintenance under 18 hama, as long as no petition under section
9 to 14 of hma.
somewhere down the line, judges forgot the law. new judges did not
know the law and went by stupid convention.
down the line, in the 90s, interim maintenance was allowed under
hama. as soon as higher courts allowed interim maintenance under 18
hama, that was the time they should have disallowed hindus to file
crpc 125 since there was no reason left to use a generic law when a
specific statute was present.
later on in 2000/2003 timeframe, limit on crpc 125 was removed and
interim in crpc 125 was allowed. most of this was to facilitate other
religions which did not have strong codific laws like hma and hama.
after the changes in hama which allowed interim and after changes in
crpc 125 which removed limit of 300/500 Rs and also allowed interim,
hindu wife should not be allowed to file under crpc 125.
hindu wife should now file under 24 while any activity under hma.
hindu wife should now file only under 18 hama while no activity under
hindu wife must file for permanent alimony only after decree is
granted under 9 to 14 of hma.
any questions ?
jawaharlal dhawan judgement explains some of it well.
a good judgement can also draw natural corrolories –
crpc 125 filed, then divorce filed, interim in crpc 125 granted, 24
hma filed – in response, 24 hma judge should just continue crpc 125
amount, unless there is change in circumstance and the crpc 125 case
should stop since divorce has been filed, or at least adjourned till
the date divorce is dismissed. ideal case, as soon as crpc 125 is
filed, if hindu, judge should say – go file 18 hama.
there are many corrolories which one can think of which we can write
in the PIL itself.
so we ask the court to clarify on these thinks and “write on stone”
so to say to lower court judges are clear about the position of the
law which has changed over time but not interpreted correctly thus
leading to multiple lawsuits wasting the precious time of already
overloaded court blah blah ..