IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD F.C.A No.139 of 2009 Dated:20-08-2011 Between: A.Eswar Babu ….Appellant. And N.Anuradha ….Respondent. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD F.C.A.No.139 of 2009 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is at the instance of the respondent in F.C.O.P.No.1009 of 2006 against the Orders passed by the Judge, Family Court, Hyderabad in the said O.P. on 18.02.2008. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. The respondent herein i.e. wife of the appellant has filed the petition under Section 18 (1) of the Hindu Adoptions and Maintenance Act, 1956 seeking past and future maintenance from the appellant herein. According to her that her marriage with the respondent was solemnized on 30.04.2001 at Jaya Gardens, Rajbhavan Road, Somajiguda, Hyderabad and the marriage was consummated and they were blessed with a daughter Namrata, who is aged 2 years old. After the marriage, they lived happily for two years, thereafter differences arose between them and they were living separately for one year till 2005 and as the efforts to conciliate their disputes failed, they filed a petition for decree of divorce by mutual consent in O.P.No.770 of 2005 and the same was decreed on 23.08.2006 and the Court granted Rs.1,000/- per month towards maintenance of their daughter Namrata. The respondent is working as Male Nurse in Ayurvedic Hospital, A.G. Colony, Hyderabad and he is drawing a salary of Rs.7,000/- and above. As such, she claimed maintenance of Rs.4,000/- per month from the date of their separation and also entitled for arrears of maintenance from April, 2003 till the date of passing of decree and also for future maintenance. Respondent opposed the said petition pleading that the petitioner is hailing from a rich family possessing sufficient and substantial wealth and she is residing in the 2nd floor of a house gifted to her by her father. He is only drawing an amount of Rs.3,464/- after deductions and he is suffering with hyper tension and the petitioner is not permitting to see the child in spite of the Orders of the Court. The petitioner is studying M.B.A. in a private college at Panjagutta and she is spending Rs.50,000/- for her requirements and this petition is filed in order to squeeze the money from him. The petitioner examined herself as P.W.1 and marked Ex.P.1. The respondent examined himself as R.W.1 and marked Exs.R.1 to R.14. After considering the said oral and documentary evidence, the lower Court has allowed the petition by awarding maintenance of Rs.1,000/- per month for a period of 3 years prior to 25.12.2006 and future maintenance at Rs.1,250/- per month from 25.12.2006. Aggrieved by the said Order, the present appeal is filed by the respondent. Now, the point that arises for consideration: Whether the respondent/petitioner is entitled for the maintenance as awarded by the lower Court? P O I N T : The main contention of the appellant’s counsel is that he has obtained divorce from the petitioner by filing the petition under Section 13 (b) of Hindu Marriage Act by mutual consent and she has not made any claim for maintenance at the time of granting divorce by mutual consent, as such she is precluded from filing the present petition for grant of maintenance. The appellant’s counsel has further pleaded that the respondent has filed the present application basing on the observations made by the lower Court while disposing of the O.P.770 of 2005 and the said observations are made by the lower Court without seeking for any relief by the petitioner, as such she cannot rely upon the said observations made by the lower Court for claiming maintenance. The respondent’s counsel, on the other hand, has pleaded that the respondent is entitled for maintenance in spite of obtaining divorce by mutual consent and simply because she has not made any claim for maintenance in the divorce petition, she cannot be precluded from claiming maintenance subsequently. There is no dispute about the petitioner and respondent obtained divorce by mutual consent in O.P.No.770 of 2005. According to the appellant/respondent at the time of granting divorce, the petitioner only sought for custody of her daughter and not claimed any maintenance, as such she is estopped from claiming maintenance in the present O.P. It is not the case of the petitioner that she has made a claim for maintenance in the O.P.No.770 of 2005 filed for divorce by mutual consent. When the petition is filed under Section 13 (b) of Hindu Marriage Act for divorce by mutual consent, the question of granting maintenance does not arise. But in the present case, the O.P.No.770 of 2005 was filed by both the parties for grant of divorce by mutual consent and the same was allowed, but the Court has granted Rs.1,000/- per month to the petitioner towards maintenance of their daughter. It is also mentioned therein that with regard to the personal articles of 1st petitioner, she will not be having future claim with regard to her articles against the 2nd petitioner i.e. respondent in the present O.P. and the 1st petitioner can initiate separate proceedings, if she is so advised, if she wants to claim maintenance against the 2nd petitioner. The said Order passed in O.P.No.770 of 2005 has become final as the same is not questioned by the appellant even to the extent of the observations made therein. Therefore, in the said Order it is specifically mentioned that the petitioner is at liberty to make a claim for maintenance against the 2nd petitioner, who is the appellant herein. Simply, because the petitioner has not made any claim in O.P.No.770 of 2005, she cannot be deprived of her right to claim maintenance from the appellant herein, who was her divorced husband. Thus, the contention of the appellant does not hold good. As, the appellant has not questioned the quantum of maintenance awarded by the lower Court to the respondent/petitioner, the same need not be considered. Hence, the respondent/petitioner is entitled for the maintenance as awarded by the lower Court. In the result, the appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:20-08-2011 Ksp