IMPORTANT POINT
The husband's failure to prove cruelty and the wife's entitlement to restitution of conjugal rights influenced the Court's decision in rejecting the petition and upholding the interim maintenance.

ORDER :

1. The petitioner is before this Court calling in question an order dated 08-10-2021 passed on an application, I.A. No. 2 in Execution Petition No. 111 of 2020 pending before the Principal Judge, Family Court, Bengaluru directing maintenance to be paid to the respondent/wife at Rs. 25,000/- per month and the minor child from the date of judgment and decree dated 28-09-2020 passed in M.C. No. 1100 of 2015 & M.C. No. 4772 of 2016.

2. Heard Ms. Biri Mary, learned counsel appearing for the petitioner and Smt. Rajani H.J. respondent/party-in-person.

3. The facts, in brief, germane are as follows:

The petitioner is the husband and the respondent is his wife. The two get married on 13-11-2011 and from the wedlock a child is born, now said to be aged 9 years. The relationship between the petitioner and the respondent/wife appears to have floundered and the respondent/wife is said to have left the matrimonial house. The discard between the two led them to file two petitions - one in M.C. No. 1100 of 2015 filed by the husband seeking a decree of divorce and the other in M.C. No. 4772 of 2016 filed by the wife seeking restitution of conjugal rights. The concerned Court takes both the matrimonial cases together and by its common judgment dated 28-09-2020 rejects the petition for divorce filed by the husband on the score that the husband has not proved cruelty on him by the wife and allows M.C. No. 4772 of 2016 filed by the wife seeking restitution of conjugal rights. Both these orders are called in question by the husband before this Court in MFA No. 96 of 2021 and MFA No. 98 of 2021 which is pending consideration at the hands Division Bench of this Court. In the interregnum, alleging that the husband has not taken the wife back to the matrimonial house pursuant to the judgment of restitution of conjugal rights, the wife files an execution petition seeking to execute the decree of restitution of conjugal rights in Execution No. 111 of 2020. The concerned Court, on the interim application filed in the execution petition, allowed the application in part, granting interim maintenance to the wife and the minor child from the date of judgment and decree dated 28-09-2020 till the disposal of the execution petition. This order is passed on 08-10-2021. The petitioner prefers the subject petition on 27-01-2022 calling in question the said order of grant of interim maintenance.

4. The learned counsel appearing for the petitioner would contend that the Court hearing the execution petition cannot consider any application filed before it for grant of interim maintenance as the Court could have executed only the decree of restitution of conjugal rights. Even on merits of the matter, the learned counsel would submit that the petitioner is already paying maintenance pursuant to application in Criminal Miscellaneous No. 23 of 2014 at Rs. 20,000/- and the application in the execution petition was not even maintainable and, therefore, the amount directed to be paid at Rs. 25,000/- to the wife and the child is contrary to law. She would further contend that both the orders are challenged before this Court in M.F.A. Nos. 96 of 2021 and 98 of 2021 and the same are pending consideration. Therefore, on all the aforesaid grounds she seeks quashment of the impugned order and grant of consequential relief not to claim any arrears of maintenance.

5. On the other hand, the respondent who appears in person takes this Court through the order passed by the concerned Court rejecting the decree for divorce and allowing the petition for restitution of conjugal rights. She would submit that when this Court has not granted stay in M.F.A. No. 96 of 2021 the husband ought to have taken the wife back to the matrimonial house. She would therefore, submit that execution petition is filed by her to go back to the matrimonial house. She would contend that interim maintenance is appropriately ordered as it is for the executing Court to award such maintenance on the failure of the