Gujarat High Court
Vijaykumar Laljibhai Soni vs Varshaben Vijaykumar Soni on 17 June, 2022
Bench: Umesh A. Trivedi
C/SCA/3166/2015 ORDER DATED: 17/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3166 of 2015
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VIJAYKUMAR LALJIBHAI SONI
Versus
VARSHABEN VIJAYKUMAR SONI
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Appearance:
MR TUSHAR L SHETH(3920) for the Petitioner(s) No. 1
HCLS COMMITTEE(4998) for the Respondent(s) No. 1
MS ASHLESHA M PATEL(6127) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE UMESH A. TRIVEDI
Date : 17/06/2022
ORAL ORDER
By way of this petition under Article 227 of the Constitution
of India the petitioner - husband has challenged order dated
23.01.2015 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 Section 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 Section 127 of
the Code of Criminal Procedure, 1973 (for short, 'the Code'), wife
has foregone the amount awarded towards maintenance
pendente lite awarded under Section 24 of 'the Act' and
therefore, the recovery application praying for recovery of
Rs.1,39,500/- 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maintenance pendente lite has come to be withdrawn, came to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.
C/SCA/3166/2015 ORDER DATED: 17/06/2022
Mr.Tushar Sheth, learned advocate for the petitioner
submitted that pursuant to a compromise between the husband
and wife in an application under Section 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.
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.
He has further submitted that Executing Court has wrongly
held that Executing Court cannot go into the issue whether any
amount awarded towards maintenance pendente lite and under
other law could be adjusted and therefore, according to his
submission, the order impugned before this Court is erroneous
and requires interference.
Having heard learned advocate for the petitioner as also
having gone through the impugned order, the documents
annexed with the petition, it is undisputed that objecting to the
recovery application for an amount of maintenance pendente
lite, petitioner-husband objected to the recovery on the ground
that as she has foregone right to recover the said amount
pursuant to the compromise entered into between the parties in
a maintenance proceedings under Section 127 of 'the Code'
C/SCA/3166/2015 ORDER DATED: 17/06/2022
whereby maintenance under Section 127 of 'the Code' has come
to be enhanced, found to be not supported by any
contemporaneous record. Having failed to show any
contemporaneous record, supporting his bold assertion, he has
come out with a decision in support of the claim saying that it
could be even adjusted in the recovery proceedings. As such, the
amount of maintenance can be claimed and granted under the
different provisions of the different Acts entitling the wife to
claim the same. It is only the fact that the Court subsequently
determining any maintenance or maintenance pendente lite or
any monetary compensation has to consider the amount of
maintenance awarded prior thereto but in no case it can be
successfully argued that no amount of maintenance under
different provisions of different Act could be granted. It is for the
concerned Court passing subsequent order of either
maintenance, maintenance pendente lite or monetary relief
under different provisions of Act to consider the order earlier
passed.
Here in the present case, boldly the petitioner-husband has
submitted that she is not entitled for the recovery of
maintenance pendente lite ordered under Section 24 of 'the Act'
as the main proceedings in which that order came to be passed
has been disposed of. Having realized that the said recovery of
the amount was not for a period subsequent to the withdrawal or
disposal of the Hindu Marriage Petition proceedings under which
order passed, learned counsel for the petitioner came out with a
plea, which is recorded in an impugned order, that respondent-
wife has foregone the amount of maintenance pendente lite
while entering into the compromise whereby the amount of
maintenance under Section 125 of 'the Code' came to be
C/SCA/3166/2015 ORDER DATED: 17/06/2022
enhanced under Section 127 of 'the Code'. Having failed to
substantiate the said contention with any contemporaneous
record he has come out with a novel and different argument that
in a recovery proceedings amount should be adjusted. However,
in an independent proceedings when no such plea was ever
raised, it is not open for the petitioner-husband to raise such
contention to adjust the amount already awarded under the
maintenance pendente lite, more particularly, when there is no
waiver of the said amount, as claimed.
The judgment relied on by the learned advocate for the
petitioner in the case of Sudeep (Supra) Supreme Court
expressed opinion without going into any detailed discussion as
respondent wife therein was absent. The Supreme Court,
therefore, modified order directing husband to pay particular
amount exercising power under Article 142 of the Constitution of
India.
I am, not for a moment, saying that it is no precedent.
However, this Court is not having power like article 142 of the
Constitution of India to pass order for consolidated maintenance.
At the same time, executing Court while executing a particular
order, in absence of, consolidated order, go behind the order,
and therefore, no fault can be found with it.
Since the petitioner - husband has not come out with clean
hands and the amount of recovery is of only Rs.1,39,000/- any
order passed based on contention, which was raised before
Executing Court, which was found to be incorrect and not
supported by any contemporaneous record and when it is
ascertained from learned advocate for the petitioner and he said
C/SCA/3166/2015 ORDER DATED: 17/06/2022
that no such document exists in writing to show that she has
waived that amount. This Court while exercising jurisdiction
under Article 227 of the Constitution of India would not like to
encourage such petitioner challenging the order impugned.
Hence, this petition is rejected. Notice discharged. Ad-interim
relief granted earlier stands vacated.
Petitioner is directed to deposit the remaining amount
under the impugned order within a period of two weeks from
today.
(UMESH A. TRIVEDI, J)
ASHISH M. GADHIYA
