SATYAWAN LAXMAN JAGTAP Vs. VIMAL SAATYAWAN JAGTAP

JUDGEMENT

(1.) THE present writ petition arises in the execution proceedings for the execution of the order of payment of maintenance granted to the respondents who are the wife and children of the petitioner in the following circumstances.

(2.) THE petitioner was married to the respondent No. 1 on 27-5-1975. The wife had initially filed Maintenance Application against the husband in the year 1980 which is numbered as Misc. Application No. 76 of 1980. In the said application order dated 10-8-1983 for maintenance was passed in favour of the wife whereby the petitioner was directed to pay maintenance at the rate of Rs. 125/- per month to the respondent No. 1-wife. Thereafter second application was filed being Misc. Application No. 182 of 1986. That application was allowed by the Ld. J. M. F. C. Daund by judgment and order dated 17th June 1991 and the respondent-wife was granted maintenance at the rate of Rs. 200/- per month and each of the two children were granted maintenance at the rate of Rs. 100/- per month. That order was challenged before the Sessions Court in Criminal Revision Application which came to be dismissed and the order of maintenance was confirmed by the judgment of the Session Court on 26-4-95. In the mean time when the application for maintenance was pending before the trial Court, the petitioner-husband filed petition for divorce against the wife in the Court of Civil Judge, Senior Division, Thane bearing M. J. Petition No. 38 of 1990. That petition was filed on the ground of adultery, cruelty and desertion under section 13 (1) (i) (i-a) and (i-b) respectively. The said petition was not contested by the wife who remained absent and, therefore, ex-parte decree came to be passed by the trial Court on 9-3-1992 for divorce under section 13 sub-section (1) Clause (i-a) and (i-b) i. e. on the grounds of cruelty and desertion. The wife in the mean time had applied for execution of the order of maintenance granted in her favour by the two courts below. The said execution proceedings were contested by the petitioner-husband on the ground that the decree of divorce was, in the meantime, granted against the wife and, therefore, he was not liable to pay any amount to the wife towards the maintenance including the arrears of maintenance which had accumulated before the passing of the decree of divorce. That application was filed before the J. M. F. C. bearing M. A. No. 355 of 1991 on 26-6-92 purporting to be made under section 125 (3) of the Cr. P. C. The Ld. J. M. F. C. , Daund rejected the said application by his judgment and order dated 8th July 1992 which is under challenge in the present writ petition.

(3.) MR. Shah, the learned Advocate appearing on behalf of the petitioner stated that during the pendency of this petition the petitioner had filed Criminal Application No. 944 of 1996 for interim stay of the execution of the maintenance order which was granted by this Court by order dated 9th June, 1993 on the basis of the judgment of the Division Bench of this Court in the case of (Sangavva v. Gullappa), reported in 44 Bom. L. R. 615. Mr. Shah, relying on the aforesaid decision, contends that since the decree of divorce is passed against the wife, she is not entitled for maintenance. He further contends that the wife was living in adultery and although the said defence in section 125 proceedings was negatived, ultimately the Civil Court, though ex parte, had decreed his petition for divorce and, therefore, the petitioner is not liable to pay maintenance including the arrears of maintenance to the wife and the children. Normally, in my view, it is open for the husband to apply for cancellation of the maintenance order by filing application under sub-section (3) of section 127 of the Code. However, in these proceedings the husband had made this application while contesting the execution proceedings taken out by the wife for the enforcement of the order in her favour for the payment of maintenance. That application was, however, rejected by the Ld. J. M. F. C.