1 cam-158-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPLICATION NO. 158 OF 2010 IN FAMILY COURT APPEAL NO. 78 OF 2010 Parveen Vijay Jobanputra .. Applicant Vs. Vijay Umershi Jobanputra .. Respondent Ms. Rebecca Gonsalvez for applicant. Mr. Nikhil Karnawat for respondent. CORAM: B. H. MARLAPALLE & R. Y. GANOO, JJ. NOVEMBER 18, 2010. P.C. 1. We have heard Ms. Gonsalvez the learned counsel for the applicant-wife. Mr. Nikhil Karnawat appears for the respondent – husband. 2. In this application, the wife prays for stay to the decree dated 9/4/2010 passed by the Family Court in Petition-A No.222 of 2007 and for interim maintenance at Rs.50,000/- per month for herself and her daughter. 2 cam-158-10 3. The respondent-husband has succeeded before the Family Court and obtained a decree for restitution of conjugal rights. The operative part of the said decree reads as under:- “1. Petition filed by petitioner for restitution of conjugal rights under section 22 of Special Marriage Act, 1954 is decreed. 2. Respondent shall allow petitioner to resume cohabitation with her in Woods apartment D-31, Koregaon Park, Pune within two months from the date of this order. 3. Claim of respondent in written statement (Exh.26) and her application under section 37 of Special Marriage Act, 1954 at Exh.119 for permanent alimony and maintenance are dismissed. 4. No order as to costs. 5. Decree be drawn accordingly.” Family Court Appeal No. 78 of 2010 has been admitted against the above stated decree on 6/7/2010, but there is no stay to the said 3 cam-158-10 order as of now. 4. It is not disputed that the applicant-wife is in possession of two adjoining flats in a posh locality of Pune city i.e. Koregaon Park. We are informed that Flat No.D-31 is being used for her residence along with the minor daughter and the adjoining Flat No.D-32, which is a smaller flat, though in her possession, is kept vacant. It appears that the wife is reluctant to restore the matrimonial relations with the husband and, therefore, she has challenged the decree of restitution of conjugal rights passed under Section 22 of the Special Marriage Act, 1954. 5. The learned counsel for the husband has relied upon a judgment of this court in Family Court Appeal No. 20 of 2005 and submitted that if the wife herself is reluctant to obey the decree for restitution of conjugal rights, she cannot claim maintenance to be paid to her by the husband. The learned counsel for the respondent further stated, on instructions, that the respondent is willing to pay an amount of Rs. 10,000/- per month for the maintenance of the minor daughter who is presently studying in the 4th standard in a convent school at Pune. 4 cam-158-10 6. Ms. Gonsalvez submitted that the wife has justifiable reasons not to allow the respondent-husband to enter the matrimonial home i.e. Flat No. D-31 and it is alleged that in the past the husband had sexually abused the minor daughter. Similar allegations were made before the Family Court as well and prima facie we do not find any substance in such allegations. 7. We, therefore, reject the prayer for stay to the decree for restitution of conjugal rights. As far as the daughter is concerned, we direct that the husband shall pay an amount of Rs.10,000/- per month to the daughter. The applicant-wife will open a joint account with the minor daughter within two weeks from today and the respondent-husband shall remit the amount of Rs.10,000/- per month in the said account and payable from 1st April, 2010. (R. Y. GANOO, J.) (B. H. MARLAPALLE, J.)