Learned counsel for the defendant-appellant further submitted that the trial court has wrongly considered the legal position that even a divorced lady is also entitled to maintenance u/s. 18 of the Act and has wrongly relied on the judgment in the case of Vitthal Mangal Das Patil vs. Mayaben Patel (1996) DMC 432. The said authority was not at all applicable in the present case. In that case the court held that u/s. 25 of the Hindu Marriage Act the word 'wife' includes a divorced wife and putting the same analogy to Section 18 of the Act the court presumed that it also included 'divorcee wife'.

Learned counsel for the appellant further argued that the trial court has also taken a wrong view of the fact that the plaintiff-respondent has already applied for setting aside the ex-parte decree of divorce while in fact after the decree of divorce although an application being Misc. Case No. 201/1996 was moved by the plaintiff-respondent to restore the original suit but the same was rejected vide order dated 9.9.1985 which clearly shows that the divorce decree is still maintained and has not been set aside and the plaintiff-respondent is admittedly a divorcee and is not entitled to any maintenance u/s. 18 of the Act.

Learned counsel for the appellant relied upon Chand Dhawan (Smt) Vs. Jawahar Lal Dhawan (1993) 3 Supreme Court Cases 406 and submitted that the apex court clearly held that a divorcee cannot get maintenance u/s. 18 of the Hindu Marriage Act. In a recent case Mrs. Manisha Sandeep Gade Vs. Sandeep Vinayak Gade, AIR Bombay 2005 page 180 the Bombay High Court also took the same view and clearly held that after grant of divorce, the wife is not entitled to maintenance.

The Bombay High Court has also held that the wife is not entitled to maintenance when it was clearly established that the income of the wife was better than the husband. It is also important to mention here that Section 18 of the Act or Section 25 of the Hindu Marriage Act deals with the situation where the wife is unable to maintain herself. The word 'unable' means that a person is not able to do what he is supposed to do. In the present matter, it is not a case that the wife is an illiterate lady or is not in a position to do any job, on the contrary the wife is highly educated particularly more than the husband and is clearly in a position to earn more. This also disentitles her to get any maintenance. Therefore, in view of the legal and factual aspects of the matter, plaintiff-respondent is not entitled to any maintenance and the decree of maintenance awarded by the trial court is liable to be set aside and the appeal deserves to be allowed.