JUDGMENT- S.S. PARKAR, J.:---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. 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)1, 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. 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. 4.In Sangavva's case (supra) the application was made by the wife for maintenance under the provisions of the old Code under section 488 of the Cr.P.C. The husband had contested it on the ground that the wife was living in adultery and, therefore, he was not liable to pay the amount of maintenance by virtue of sub-section (4) of section 488 which is similar to sub-section (4) of the present provision i.e. section 125 of the Code. In spite of that order he refused to pay the amount of maintenance. The wife, therefore, took out execution proceedings in which the husband again pleaded that he had sufficient cause not to pay the amount as the wife was living in adultery and, therefore, dismissed the execution proceedings not only with regard to the future amount of maintenance but also in respect of the arrears of maintenance as per the initial order. 5.On the basis of the said judgment Mr. Shah contends that the husband is not liable to pay not only the amount of future maintenance from the date of decree of divorce but even the arrears of maintenance to the wife as well as the amount of maintenance granted to the children who are arraigned as respondent Nos. 2 and 3 to this petition. So far as the claim for maintenance for the children is concerned, Mr. Shah bases his argument on the ground that the divorce petition was filed not only on the ground of cruelty and desertion but also on the ground of wife living in adultery and the decree having been passed in his favour the children also would not be entitled as they were born out of the wedlock. 6.So far as the liability of the husband for the payment not only of the future maintenance but even with regard to the arrears of maintenance is concerned, the petitioner, in my opinion, would not be liable to pay the same in view of the ratio of the decision of the Division Bench of this Court in Sangavva's case (supra) . However, the contention of Mr. However, the contention of Mr. Shah with regard to the liability for the payment of maintenance to the children is, in my view, untenable. The perusal of the ex-parte decree for divorce passed by the Jt. Civil Judge Senior Division, Thane by order dated 9-3-1992 would show that the decree of divorce was passed under section 13(1)(i-a) and (i-b) i.e. on the ground of cruelty and desertion and not under section 13(1)(i) i.e. the ground of adultery Mr. Shah sought to rely on the observations of the trial Court, particularly in para 3 of the judgment, where the trial Court had observed that the husband had alleged, inter alia, that wife was living immoral life and during that period she had given birth to two children out of the illicit relations with other person. What I find is that though those observations were made by the Civil Court, the decree of divorce was not granted on the ground of adultery and if the said Court had found that the wife was living in adultery, nothing prevented the Court to pass decree under section 13(1)(i) i.e. on the ground of adultery. In any event, there is no finding today by any competent Court that the respondent Nos. 2 and 3 children were born per alium. In the absence of any finding or decree of any competent Court that the children were born per alium, they are entitled to get maintenance as per the impugned order in execution proceedings. 7.In the aforesaid circumstances, the petition succeeds partially as regards the execution for the order of maintenance in favour of the respondent No. 1 wife is concerned but not as regards the order of maintenance granted in favour of respondent Nos. 2 and 3 children. 8.In the result the petition is partially allowed and the order of the trial Court dated 8-7-1992 passed in Misc. Application No. 355 of 1991 is set aside only to the extent of execution of arrears of maintenance in favour of respondent No. 1 wife only. Rule is made absolute accordingly. In view of the above the order of stay granted by this Court on 9th June 1993 shall stand vacated as regards payment of maintenance to respondent Nos. 2 and 3. Petition partially allowed. -----