VIJAYKUMAR LALJIBHAI SONI Vs. VARSHABEN VIJAYKUMAR SONI

JUDGEMENT

(1.) By way of this petition under Article 227 of the Constitution of India the petitioner - husband has challenged order dtd. 23/1/2015 passed by learned Principal Senior Civil Judge, Himmatnagar below Exh.12 in Regular Hindu Marriage Execution Application No.5 of 2013 by which the petitioner-husband's objection to payment of amount awarded towards maintenance pendente lite under Sec. 24 of the Hindu Marriage Act (for short, 'the Act') on the ground that while settling the case between the parties in a proceedings filed under Sec. 127 of the Code of Criminal Procedure, 1973 (for short, 'the Code'), wife has foregone the amount awarded towards maintenance pendente lite awarded under Sec. 24 of 'the Act' and therefore, the recovery application praying for recovery of Rs.1,39,500.00 cannot be granted to her, more particularly, when Hindu Marriage Petition No.6 of 2010 in which she was awarded maintenance pendente lite has come to be withdrawn, came to be turned down.

(2.) Mr.Tushar Sheth, learned advocate for the petitioner submitted that pursuant to a compromise between the husband and wife in an application under Sec. 127 of 'the Code', maintenance amount has come to be enhanced and therefore, respondent-wife has foregone the amount of maintenance pendente lite and therefore, she cannot recover the same by way of filing this execution proceedings.

(3.) He has further submitted that in view of the judgment in the case of Sudeep Chaudhary V/s. Radha Chaudhary reported in (1997) 11 SCC 286 as held in it on failure of husband to pay the amount of maintenance in a recovery proceedings, maintenance amount awarded under provisions of different law should be adjusted against interim alimony.