1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Revision Application No.150 of 2010 Mohammad son of Ganga Khetiwale, aged 27 years, occ : Labourer, resident of Gawalipura, Karanja Lad, Distt. Washim. .... Applicant. Versus 1. Ruksana wife of Mohammad Khetiwale, aged 23 years, resident of C/o Chandu Beniwale, Naigaon, near Masjid, Tq. & Distt. Akola. 2. Ku. Simarin daughter of Mohammad Ganga Khetiwale, aged about 2 years, minor, through guardian mother  Ruksana wife of Mohammad Khetiwale, resident of C/o Chandu Beniwale, Naigaon, near Masjid, Tq. & Distt. Akola. .... Respondents. ***** Mr. S.P. Hedaoo, Adv., for the petitioner-applicant. Mr. P.S. Wathore, Adv., for respondent no.1. ***** 2 CORAM : A.H. JOSHI, J. Date : 16th March, 2011. ORAL JUDGMENT : 1. Rule. Rule is made returnable forthwith and the application is heard finally by consent. 2. Heard learned Adv. Mr. S.P. Hedaoo for the petitioner and learned Adv. Mr. P.S. Wathore for respondent no.1. 3. This is a petition by husband. 4. Case proceeds on following background:- [a] Petitioner herein as a plaintiff had filed Regular Civil Suit No. 46 of 2007. [b] The said suit was decreed and the Respondent no.1 herein was directed to join the company of husband. [c] The petitioner has filed execution proceedings for enforcement of said decree for restitution. Said decree is still unsatisfied. [d] Wife-respondent filed a Petition under Section 125 of Criminal Procedure Code, which was registered as Misc. Criminal Case No. 913 of 2007. 3 [e] Said petition under Section 125, Criminal Procedure Code, was transferred to Family Court, and the Family Court fas tried and decided the same as Petition No. 97 of 2009 by Judgment and Order dated 23rd June, 2010. [f] The learned Family Court passed following order:- Non applicant is directed to pay Rs.500/- per month to each of applicants i.e., in aggregate Rs.1000/- per month from the date of order. [Quoted from Page No.58 of the Revision Application paper-book]. 5. In this petition, the petitioner has challenged the order granting maintenance to the wife and children both. 6. To support his contention, learned Adv., for the petitioner has placed reliance on the reported Judgment of this Court in case of Sharadchandra Satbhai Vs. Indubai Satbhai & another [1978 Mh.L.J. 123]. 7. The legal proposition relied upon by the petitioner is based on settled doctrine that the wife, who refuses to co-habit with the husband without a reasonable excuse, is not entitled for maintenance. 4 8. Learned Adv., for the respondents has urged that though wife is willing to co-habit, the husband is not allowing to do so. Record shows that t]he plea of wife does not receive judicial support, in the background of unexecuted decree for restitution, and failure of wife to appropriately counter the execution in the Executing Court. 9. In these premises, the first paragraph of the impugned decree granting maintenance to the wife is unsustainable. 11. In so far as the order of maintenance to children is concerned, it does not call for any indulgence. 12. In the result, petition is partly allowed in following terms:- [a] The order passed by the Family Court in E. Petition No. 97 of 2009, in so far as it relates to first para of operative part, which reads as follows:- Non applicant is directed to pay Rs.500/- per month to each of applicants i.e., in aggregate Rs. 1000/- per month from the date of order. , is hereby set aside. 5 [b] It would be open to the wife to join company of the husband. 13. Rule is made absolute in above terms. JUDGE -0-0-0-0- |hedau|