1 IN THE HIGH COURT OF BOMBAY AT GOA SECOND APPEAL NO.91/2006. Shri Deepa Alias Maya Dilip Fadte ..... Appellant. Versus Shri Dilip Krishna Fadte ..... Respondent Mr. S. D. Padiyar, Advocate for the appellant. Mr. A. D. Bhobe, Advocate for the respondent. Coram :- A. P. LAVANDE, J. Date of reserving the order :18 th November, 2008. Date of pronouncing the order : 27 th November,2008. P.C. : 1. Heard Mr. S. D. Padiyar, learned Counsel for the appellant and Mr. A. D. Bhobe, learned Counsel for the respondent. 2. By this second appeal, the appellant takes exception to the judgment and order dated 06/02/2006 passed by the First Ad hoc Additional District Judge, Panaji in Regular Civil Appeal No.85/2005 dismissing the appeal against the judgment and decree dated 30/06/2005 passed by the Civil Judge, Senior Division, Ponda in (Regular Civil Suit 2 No.56/01/A) Matrimonial Civil Suit No.18/2002/A. 3. The appellant is the wife of the respondent. The marriage was solemnized in the year 1998 and a child was born to them out of wedlock. According to the appellant, the respondent and his family members started ill-treating her and as such she was forced to leave the matrimonial home. The appellant filed a suit for maintenance claiming maintenance @ Rs.2,000/- per month for herself and Rs.2,500/- per month for her minor son. The suit was resisted. The Trial Court awarded Rs.1,500/- per month towards maintenance of the minor son and rejected maintenance for the appellant. 4. Aggrieved by the refusal to award maintenance in her favour by the Trial Court, the appellant filed an appeal to the District Judge at Panaji, which was made over to Additional District Judge. By the impugned judgment and decree passed in Regular Civil Appeal No.85/2005, the Lower Appellate Court dismissed the appeal holding that the suit filed by the appellant, independent of petition for divorce, was not maintainable. The learned Lower Appellate Court placed reliance upon Articles 29 and 30 of the Portuguese Civil Code which is in force in the State of Goa. The Lower Appellate Court held that Article 29 of the Code confers rights on either spouse to claim maintenance in case of need, but it does not stipulate that the spouse is 3 entitled to maintenance if he/she is ill-treated or harassed by the either side. The Lower Appellate Court further held that under Article 30 of the Code, maintenance can be sought by the plaintiff along with a suit for divorce or after the judgment granting divorce, is delivered. Aggrieved by the judgments and decrees passed by both the Courts below, the appellant is before this Court. 5. Mr. Padiyar, in support of appeal, submitted that the view taken by both the Courts below, is patently unsustainable in law placing reliance upon Article 38 of Portuguese Civil Code and Articles 1231 and 1184 of the Portuguese Civil Code. Mr. Padiyar submitted that a suit simplicitor claiming maintenance without claiming divorce, is maintainable in law. 6. Per contra, Mr. Bhobe, learned Counsel appearing for the respondent supported the impugned order and submitted that both the Courts have correctly appreciated the legal and factual position and, therefore, the appeal is liable to be dismissed. He further submitted that no substantial question of law, is involved in the present appeal. 7. I have considered the submissions made by the learned Counsel for the parties and perused the record. The Lower Appellate Court has placed reliance upon Articles 29 and 30 of the Portuguese 4 Civil Code and has held that in view of the said provisions, a suit simplicitor for maintenance by wife, without filing a petition for divorce, is not maintainable. In my opinion, the Lower Appellate Court has not committed any illegality while recording the said finding. Article 1184 of Portuguese Civil Code provides that spouses are bound to maintain mutual conjugal fidelity; and to live together and reciprocally assist and help one another. Article 1231 provides that once the marriage is dissolved, the spouse who due to the death of the other, is found without means of substance, shall be entitled to be maintained from the income of the properties left by the deceased. The provisions upon which reliance has been placed by Mr. Padiyar, do not advance the case of the appellant that the suit simplicitor for claiming maintenance at the instance of the wife, is maintainable in law. On the contrary, if Articles 29 and 30 are read in conjunction, the only conclusion which can be drawn is that the suit simplicitor claiming maintenance by wife without seeking divorce, is not maintainable. I, therefore, find no merit in the present appeal. In my considered opinion, no substantial question of law, is involved in the present appeal preferred by the appellant against the impugned judgments and decrees passed by both the Courts below concurrently holding that the appellant is not entitled to maintenance. 8. In view of the above, the appeal is summarily rejected 5 with no order as to costs. Needless to mention that the dismissal of this appeal, will not come in the way of the appellant from availing appropriate remedy if available in law to seek maintenance from the respondent. A.P. LAVANDE, J. SMA