JUDGMENT : 1. The present application under Section 482 of Code of Criminal Procedure, is filed to set up a challenge to the judgment and order passed by learned Additional Sessions Judge-8, Nagpur dated 7/4/2011 in Criminal Revision No.657/2010, by which the revision filed on behalf of the present applicant was dismissed and the order passed by the learned Judicial Magistrate First Class, Umred dated 17/9/2010, granting maintenance at the rate of Rs. 2000/- per month to the non-applicant no.1 and Rs.1000/to the non-applicant no.2 in Misc.Criminal Case No.23/2009 was confirmed. 2. On this application, this Court on 24/9/2013, gave Rule. Thereafter, the matter was listed on a board for final hearing. On 10/2/2015 nobody appeared before this Court and therefore the matter was kept on 17/2/2015. Instead of 17/2/2015 this application was listed for final hearing on 28/7/2015. On the said day, at the request of the learned counsel for the applicant the matter was adjourned. Thereafter, it came up for final hearing on 8/10/2015 and 27/10/2015. On both these occasions nobody appeared for and on behalf of the parties, therefore the matter was adjourned. 3. Today, when this application was called for final hearing, learned counsel for the applicant and learned counsel for non-applicant no.1 chose not to remain present before the Court. The learned A.P.P. is present for non-applicant no.2-State though a formal party. With the assistance of learned A.P.P.I gone through the impugned judgment. 4. The few facts for deciding the present application can be summerised as under: (i) The applicant hereinafter is referred as “husband” and non-applicant no.1 is referred as “wife” and their marriage was solemnised on 13/12/2006 at Umred. The couple had a son by name ‘Aaryan’ from the wedlock. (ii) Application under Section 125 of the Code of Criminal Procedure was filed in the Court of learned Judicial Magistrate First Class, Umred by the wife for herself and for her minor son Aaryan against husband. The said application was filed on 9/2/2009. The same was registered as Misc.Criminal Case No.23/2009. (iii) It was pleaded on behalf of the wife that after two months of the marriage she was subjected to harassment. It is also pleaded in the application that when she became pregnant even during her pregnancy she was neglected. The said application was filed on 9/2/2009. The same was registered as Misc.Criminal Case No.23/2009. (iii) It was pleaded on behalf of the wife that after two months of the marriage she was subjected to harassment. It is also pleaded in the application that when she became pregnant even during her pregnancy she was neglected. Not only that, she was not properly feeded and resultantly due to malnourishment during her pregnancy when sonography was done it was found that the child in the womb was already dead. It is also pleaded in the application that when her brother Khushal and one Manohar Aambolikar had been to Kalyan for taking the wife for Dipawali even at that time though initially the husband was not ready to send her ultimately he gave permission. It is also pleaded that during her stay at her parental house husband had been there to attend one marriage. However, he left for Kalyan without taking wife with him. It is also pleaded in the application that husband’s parents asked husband and wife to reside separately. Even during the said period of their separate living wife was subjected to cruelty at the hands of the husband. On second occasion when wife became pregnant even that time also there was no proper care and treatment was given to the wife by husband. The wife therefore was worried about the new member of the family and therefore she made a phone call to her brother and along with him she reached to Umred on 11/7/2008 and on 8/8/2008 at Dalvi Hospital, Nagpur wife gave birth to child. Inspite of that, the husband did not bother to visit wife or to see his son. It is also stated in the application that husband runs a general store under the name and style “Jai Maa Durga General Store” and is earning Rs. 30,000/- per month, and therefore wife claims maintenance of Rs. 3,000/for herself and for her son. 5. On being summoned husband appeared in the Court of learned Judicial Magistrate First Class, Umred and filed his written statement. The facts of the marriage and paternity are not denied, however all other allegations are denied. The written statement is filed on 7/9/2009. 6. Wife filed her evidence on affidavit and also entered into witness box. Her evidence is in the line of her pleadings in the application for maintenance. The facts of the marriage and paternity are not denied, however all other allegations are denied. The written statement is filed on 7/9/2009. 6. Wife filed her evidence on affidavit and also entered into witness box. Her evidence is in the line of her pleadings in the application for maintenance. She was cross-examined by the counsel appearing on behalf of husband. The tenor of the cross-examination shows that the wife is running beauty parlour and is earning Rs.6,000/per month. Though there was harassment she failed to file a police complaint against the husband. Her cross-examination was over on 11/3/2010. 7. On 29/3/2010, husband filed his affidavit in evidence. His affidavit only shows that behaviour of the wife was rude and she used to give threats that she is having proud of her five maternal uncles and they can do anything for her. It is also stated in the affidavit that she is having beauty parlour. 8. The learned Magistrate after appreciating the pleadings and evidence brought on record, recorded the findings of fact that husband has neglected wife and wife is entitled for maintenance. By the impugned judgment and order, the learned Magistrate granted maintenance of Rs. 2,000/- per moth in favour of the wife and Rs.1000/- per month in favour of the son from the date of the application. The aforesaid order was questioned by filing Criminal Revision No.657/2010 and by judgment and order dated 7/4/2011 the revision was dismissed. 9. The grounds raised in the application show that the learned Court below ought to have considered the fact that husband filed petitioner under Section 9 of the Hindu Marriage Act, and a decree was passed in favour of the husband which was disobeyed by the wife, and therefore the wife was not entitled for maintenance. Another ground is that no sufficient opportunity was given to the husband to lead his evidence to prove his case. Another ground is that husband hardly earns Rs. 2,500/- per month and therefore the prayer is made for setting aside the order. In the synopsis, at the bottom the reliance is placed by the husband on a decision of this Court reported in Sayyed Jabbar Ali Vs. Mst.Saheba Fatima W/o Sayyed Jabbar, 2002(1) Mh.L.J.623 and decision by this Court in Criminal Application No.1804/2009, Ramkrushna Somaji Nadekar..vs..Smt. Manjusha W/o Ramkrushna Nadekar. 10. In the synopsis, at the bottom the reliance is placed by the husband on a decision of this Court reported in Sayyed Jabbar Ali Vs. Mst.Saheba Fatima W/o Sayyed Jabbar, 2002(1) Mh.L.J.623 and decision by this Court in Criminal Application No.1804/2009, Ramkrushna Somaji Nadekar..vs..Smt. Manjusha W/o Ramkrushna Nadekar. 10. Along with the present application under Section 482 of the Code of Criminal Procedure the applicant has also annexed the judgment and order passed in H.M.P.No.41/2009,passed by learned 3rd Joint Civil Judge Senior Division, Kalyan dated 17/9/2010, by which the petitioner under Section 9 of the Hindu Marriage Act, filed on behalf of the husband was allowed and decree was granted for restitution of conjugal rights. 11. Perusal of the judgment passed by the learned Magistrate shows that at the time of hearing of the application under Section 125 of Code of Criminal Procedure, the judgment and decree passed by the learned Civil Judge Sr.Dn.Kalyan in H.M.P.No.41/2009 was filed on record along with list (Exh.23) and that was pressed into service for pointing out that it is wife who has withdrawn herself from the company of the husband. 12. Annexure-A of this application is a judgment and decree passed by the learned Civil Judge Sr.Dn.Kalyan in H.M.P.No.41/2009 shows that it was filed on 21/1/2009. The written statement filed by husband in the proceeding under Section 125 of the Code of Criminal Procedure is dated 7/9/2009. Thus, written statement in proceeding under Section 125 of the Code of Criminal Procedure was filed after good eight months. Inspite of that, the written statement of the husband is totally silent about the filing of the H.M.P. by him before the Kalyan Court on 21/1/2009. It is to be noted that H.M.P. at Kalyan was decided against the wife exparte. The judgment is dated 17/9/2010, therefore it is crystal clear that the husband intentionally did not mention the filing of H.M.P.in his written statement. Further, after examination in chief of the wife was over on 17/11/2009, the husband and his counsel remained absent for cross-examination of the wife, and therefore the matter was adjourned. Ultimately, on 11/3/2010, the cross-examination of the wife was conducted. Even during her cross-examination, it was not confronted to the wife that in spite of decree of restitution of conjugal rights which is already passed against her she is flouting the decree and is not joining the company of husband. Ultimately, on 11/3/2010, the cross-examination of the wife was conducted. Even during her cross-examination, it was not confronted to the wife that in spite of decree of restitution of conjugal rights which is already passed against her she is flouting the decree and is not joining the company of husband. Thus, it was never the case of the husband that the wife was deliberately avoiding or disobeying the exparte decree of restitution of conjugal rights. 13. Under Order XXI Rule 31 of Code of Civil Procedure the decree for restitution of conjugal rights is an executable decree if the wife was not joining the company inspite of the decree may be exparte. It was open for the husband to put the said decree for execution in view of provisions of Order XXI Rule 31 and 32 of the Code of Civil Procedure. No such steps were taken by the husband. The learned Magistrate in my view though cursorily has observed about non-institution or not instituting the execution proceeding, in my view correctly. This conduct in my view shows that only for namesake the husband instituted the proceedings under Section 9 of the Hindu Marriage Act and obtained the decree exparte. The facts in Sayyed Jabbar Ali case (cited supra) in my view cannot be made applicable since in the said case, this Court found that without there being any justifiable cause the wife has refused to join the company of her husband. Even in the unreported case Ramkrushna (cited supra) this Court has observed as under: “It is true that in the presence of decree for restitution of conjugal rights against the wife she has no right to claim maintenance, has a qualification and that the wife can still claim maintenance in the presence of such decree if the conduct of the husband is such which obstructs her to obey the decree for restitution of conjugal rights.” 14. The aforesaid two decisions therefore, clearly postulate that it should be well within the knowledge of the wife that a proceedings for restitution of conjugal rights are filed, not only that a decree is already against her and inspite of the decree she is not joining the company. The aforesaid two decisions therefore, clearly postulate that it should be well within the knowledge of the wife that a proceedings for restitution of conjugal rights are filed, not only that a decree is already against her and inspite of the decree she is not joining the company. In the case at hand, as observed in the preceding paragraphs of this judgment it appears that, deliberately the factum of filing of the petition for restitution of conjugal rights was suppressed by husband in his written statement. Though the written statement was filed after the lapse of eight months of filing of the restitution of conjugal rights petition. Not only that, even when the wife was under cross-examination she was not confronted with the said decree. Furthermore, no execution is filed. Therefore, in my view, a decree in hands of the husband for restitution of conjugal rights is not helpful to him for denying the maintenance to the wife. 15. Another contention is that no proper opportunity was given to the husband. Both the learned Courts below have observed in the impugned judgments that husband has made reckless allegations against his earlier advocate who conducted the case on his behalf in the Court of learned Magistrate. Both the learned Courts below noticed that allegations made against the said advocate are not only reckless but are contrary to the record. The learned Courts below noticed that inspite of fact that there were no instructions to the said advocate the said advocate on his own tried to protect the interest of the husband to such limit which the advocates are permitted. Though affidavit for evidence is filed on behalf of the husband, the reason best known to the husband he failed to enter into witness box and thereby he failed to present himself for cross-examination to test veracity of his statement made on the affidavit. In that view of the matter, I am of the view that the affidavit which was not tested on the touchstone of the cross-examination cannot be the evidence on behalf of the husband. 16. Further in the judgment delivered by the learned revisional Court shows that an attempt was made before the learned revisional Court by learned counsel representing the husband in the revision that the earlier counsel did not put proper questions to the wife when she was under his cross-examination. 16. Further in the judgment delivered by the learned revisional Court shows that an attempt was made before the learned revisional Court by learned counsel representing the husband in the revision that the earlier counsel did not put proper questions to the wife when she was under his cross-examination. That aspect is also dealt with by the learned revisional Court suitably. 17. It was never the case of the husband that at any point of time he provided maintenance to his son. There may be some dispute in between husband and wife. The husband and wife can resolve their dispute by taking the course of law, however their dispute cannot deny the legitimate rights of son or daughter to get himself or herself maintained from the father. Till the order was passed no attempt was even made by husband to provide maintenance. Even before the learned revisional Court he made his son as a party and contested maintenance granted to him. Though son is not made party to the proceeding there is nothing on record to show that he has provided any maintenance to him. In that behalf, when this matter was firstly listed before this Court on 24/8/2011 the husband obtained the stay in terms of prayer clause (c) of the proceedings which includes stay of the judgment and order passed by the learned Magistrate meaning thereby granting maintenance to the son also. The stay was in operation till 24/9/2013 and when this Court granted rule to the application that time it was clarified by this Court that the said shall be only in respect of the maintenance of wife. However, there is nothing on record to show that the husband is paying maintenance to his son Aaryan. 18. The aforesaid evaluation of the entire case shows that it is the husband who has neglected to maintain his wife and son. There is nothing on record to disbelieve the evidence of wife about the earning of husband. The order passed by both the learned Courts below reaching to the findings of fact in respect of claiming maintenance in the light of income of the husband in my view cannot be termed as unjust or perverse. Resultantly, I dismissed this proceeding with a costs of Rs. 25,000/-. Hence, the order. ORDER (I) The application is dismissed with costs of Rs. 25,000/-. Resultantly, I dismissed this proceeding with a costs of Rs. 25,000/-. Hence, the order. ORDER (I) The application is dismissed with costs of Rs. 25,000/-. (II) The costs to be paid to the wife and son within a period of four weeks from today. (III) This copy of this order be sent to Collector, Kalyan and if the amount of costs is not paid within a period of four weeks then the Collector, Kalyan is directed to take necessary steps to recover the costs from the applicant-husband Nitin Kumar S/o Yugdas Mahant as arrears of land revenue. (IV) On recovery of costs, the Collector, Kalyan is directed to place the compliance report before this Court. (V) With this, the application is disposed of. The rule is discharged.