Family Court Appeal No.97 of 2007

17th April, 2009

Petitioner Counsel: Mr. TEJAS VORA,Mr. G. K. VORA
Respondent Counsel: Ms. SEEMA SAIRNAIK

JUDGMENT

B. H. MARLAPALLE, J.:- This appeal filed under Section 19 of the Family Courts Act, 1984 (the Act for short) arises from the Judgment and Order dated 30/6/2006 rendered by the Family Court at Pune thereby dismissing Petition No.C-39 of 2004 filed by the appellant-wife praying for maintenance under Section 18 of the Hindu Adoption and Maintenance Act, 1956 (for short the Maintenance Act).

2. The parties were married on 19/12/1997 and they cohabited till April, 2001. On or about 19/7/2001, the respondent-husband filed Petition No.A-501 of 2001 for seeking divorce on the ground of cruelty and the said petition came to be dismissed by the Family Court on 12/4/2004. The wife, therefore, approached the Family Court on or about 2/6/2004 with Petition No.C-39 of 2004 praying for maintenance. The husband filed his Written Statement at Exh.18 and opposed the petition. He stated that though she was staying with her parents from 24/4/2001, she has independent source of income. She had received an amount of Rs.1,11,000/- by way of interim maintenance and she withdrew the application filed under Section 125 of Cr.P.C. on 29/6/2004. He further stated that he was a partner in the family business and the allegation that he was earning Rs.25,000/- per month was without any support. He also stated that the wife was earning sufficient income and she did not require an amount of Rs.15,000/- to maintain herself and the said claim was without any supporting documents. As per him, the claim made was exaggerated and was required to be dismissed.

3. The wife examined herself in support of her claim and the husband stepped in the witness box to oppose the same. The Family Court framed the following issues and answered in the negative :-

	Issues	Findings
(1)	Whether the Petitioner proves that she has a reasonable cause to reside separately from the Respondent without forfeiting her right to claim maintenance ?	No
(2)	Whether the petitioner is entitled to claim maintenance from the Respondent ?	No
(3)	If yes, what should be the quantum ?	Nil

Consequently, the petition was dismissed. The Family Court held that the wife could not justify her staying away from the husband and, therefore, there was no case made out for entertaining an application under Section 18(2) of the Maintenance Act. If the wife failed to make out a case under any of the clauses of Section 18(2), consequently, the claim for maintenance would stand rejected, held the learned Judge of the Family Court.

4. In our considered opinion, the learned Judge of the Family Court misdirected herself. The wife in her petition, under Section 18, after setting out that the petition for divorce filed by the husband was dismissed on 12/4/2004, stated thus-

".....That the petitioner states and submits that the respondent is duty bound to maintain the petitioner herein. In the circumstances, it has become just, fair, proper, necessary and expedient, in the interest of justice and equity that the respondent should be directed to pay permanent maintenance of Rs.15,000/- per month to the petitioner. The respondent should also be directed to provide separate residence to the petitioner, since the respondent and his parents have treated the petitioner with such amount of cruelty that the petitioner apprehends imminent danger to the life and limb of herself and hence, she is compelled to take shelter of her parents, totally against her wishes and will. Hence, the petitioner is compelled to approach this Hon'ble Court for the reliefs, as prayed for."

5. In his written statement filed opposing the petition for maintenance, the husband did not take a plea that after his petition for divorce was dismissed he had called upon the wife to join the matrimonial home for cohabitation with him and that such offer was refused by the wife and she continued to stay away from the matrimonial home on that ground. If such a case was pleaded or made out by the husband before the Family Court, the learned Judge was right in proceeding with the inquiry under Section 18(2) of the Maintenance Act. However, on the background that the petition for divorce filed by the husband was dismissed on 12/4/2004 and the husband did not make out a case that the wife thereafter refused to co-habit with him, the claim of the wife was required to be considered under Section 18(1) of the Maintenance Act. It states that a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime, subject to the provisions thereunder. Sub-section (3) of Section 18 states that a Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion. In our view, therefore, the Family Court was in gross errors in considering the petition of the wife under Section 18(2) of the Maintenance Act and dismissing the same.

6. Admittedly, the matrimonial relationship between the parties continues as of now and even before us the wife declared her unqualified intentions to resume cohabitation with the husband. However, the offer made by the wife is not acceptable to the husband and he insisted for annulling the marriage. Though we have noted that the parties are not cohabiting from May 2001 onwards, the right of maintenance as guaranteed under Section 18 of the Maintenance Act cannot be taken away. Even otherwise if the Family Court had examined the wife's evidence in the divorce petition, there would be justification to allow maintenance under Section 18(2) of the Maintenance Act.

7. So far as the income of the husband is concerned, admittedly, there is no tangible evidence on record, but at the same time he is in the family business which is about 145 years old. He is a partner along with his brother in the family business of jewellery. The turnover of the business was stated to be in the range of Rs.35 to Rs.40 lakhs per annum as admitted in the cross-examination. However, copy of the balance-sheet or the income tax return was not called for and, therefore, could not be placed on record, despite the fact that he had shown his willingness to do so. In the family business the husband is a partner alongwith his elder brother. He has no one else to support in the family as of now. At the same time, the husband did not place any document on record to point out that he was earning less than Rs.25,000/- per month. We, therefore, deem it appropriate that the maintenance amount of Rs.3,000/- as of now requires to be enhanced. At the same time, it is well settled that the application under Section 18 of the Maintenance Act and under Section 25 of the Hindu Marriage Act cannot be considered on the same footings. While considering the application under Section 18 of the Maintenance Act, the requirement for residence, the standard of living, which could be available to the wife in the matrimonial home, are required to be taken into consideration. Hence, we deem it appropriate to fix the maintenance amount at Rs.10,000/- per month.

8. In the premises, we allow the appeal and quash and set aside the impugned judgment and order dated 30/6/2006 rendered by the Family Court in Petition No.C-39 of 2004. The Petition No.C-39 of 2004 filed by the wife stands allowed and we direct that the respondent-husband shall pay an amount of Rs.10,000/- per month to the appellant-wife by way of maintenance under Section 18 of the Maintenance Act till such time she is allowed to join the matrimonial home for cohabitation. The maintenance shall be payable from the day the petition is filed in the Family Court and the difference shall be paid within eight weeks from today.

Appeal allowed.