Hon’ble Aniruddha Singh, J.—Heard learned counsel for the revisionist and learned AGA for the State, and perused the record.

2. This criminal revision under Section 397/401 Cr.P.C., has been filed against judgment and order dated 6.11.2017 passed by Principal Judge, Family Court, Jalaun at Orai in Criminal Misc. Case No. 40/2016 (Smt. Kavita Verma and another v. Vimal Kumar Verma) whereby application of opposite party Nos. 2 and 3 namely Smt. Kavita Verma(wife) and Ansh (son) under Section 125 Cr.P.C. has been allowed and revisionist was directed to pay Rs. 8000/- per month to his wife and Rs. 5000/- per month to his son.

3. Learned counsel for the revisionist submitted that maintenance awarded by the Court below is higher and his wife/opposite party No. 2 is not willing to live with him, hence no maintenance can be awarded to her and son. Opposite party No. 2 is highly educated and is able to teach children and she has source of income. It has also been argued that wife/opposite party No. 1 did not obey judgment and decree dated 27.11.2017 passed in Marriage petition No. 52/2016 under Section 9 of Hindu Marriage Act, against which she has filed First Appeal No. 57/2018 under Section 19 of Family Court and the same is pending; hence finding of impugned order dated 6.11.2017 passed by Family Court is incorrect.

4. The revisionist is an Assistant Teacher in a Primary school and is getting Rs. 43,863/- per month. His salary must have been increased after 7th Pay Commission. Perusal of pay certificate 25ka/1 and 2 issued by SDO, Kurchauli Vikas Khand, Nandigaon, District Jalaun shows that revisionist received salary of Rs. 43,869/- for June, 2017 and total Rs. 62,313/- (including arrears of Rs. 20,493/- for May, 2017). This fact has been admitted by the revisionist in his cross-examination. It is proved by the evidence of wife/opposite party No. 2 that he is unable to maintain her and her minor son. In the application of opposite party No. 2 it has been specifically stated that revisionist has tortured and ill-treated her. Seeing the education system, amount awarded by the Court below to the son is not excess.

5. Since First Appeal No. 57/2018 is pending against judgment and decree dated 27.11.2017, maintenance cannot be refused only on the ground of not obeying the said judgment. At this stage, it will not be proper to give finding on this point when the matter is subjudiced before the competent Court.

6. In the case of Saranan Banerjee v. State of Jharkhand, 2007(2) AIR P 82(Jhar), Court has held that an order of maintenance would not be set aside merely on the ground that wife refused to live with the husband despite decree for conjugal rights where she alleges torture and ill-treatment. Paragraphs 11,12 and 13 are quoted below :

“11. Finally it has been submitted that since the wife is not ready to live with her husband in spite of conciliation and efforts taken by this Court and also in view of the decree of restitution of conjugal rights as claimed by the husband, the wife Aparna Banerjee is not entitled to maintenance at all.

12. Having regard to the facts and circumstances of the case from the perusal of the order impugned passed by the Principal Judge, Family Court, Jamshedpur though I find that the pleading of the wife Aparna Banerjee that her husband had been earning Rs. 30,000 could not be established, it was gathered that the husband had been earning Rs. 3,000 to 3,500 per month in course of his temporary employment in Telco. It is also established that the husband has tea-stall of his own and that he purchased a flat. On the basis of such assessment and finding the amount of maintenance awarded to the tune of Rs. 1,000 to the wife Aparna Banerjee and Rs. 500 to their daughter per month does not call for interference in revision. But now the fact remains that the husband Saranan Banerjee had obtained a decree under Section 9 of the Hindu Marriage Act for restitution of conjugal rights as against Aparna Banerje