ORAL 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.15000/-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