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2018 Supreme(Kar) 709

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
S. SUJATHA, B.A. PATIL, JJ.
Smt. Padmaja S., W/o. Capt. [Retd]., V.R. Srinivas D/o. Late Sri. P. Sai Prasad - Petitioners
Versus
Capt. [Retd]. V.R. Srinivas, S/o. Late Bnr. Chandra - Respondents
Review Petition No.123 of 2018 IN MFA No.4293 of 2017 (FC)
Decided On : 06-04-2018

Advocates Appeared:
For the Petitioners: Sri. N. Ravindranath Kamath, Adv.

Headnote:CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 47, Rule 1 - Review - Condonation of delay of 220 days in filing review - Petitioner, wife failing to show good case on merits - Lenient view to condone delay held, not tenable.

       CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 47, Rule 1 - Review - Interim application for maintenance - In main petition for divorce, there was also interim application for permanent alimony - Plea of wife that it was obligatory on part of Trial Court to decide interim application - All these aspects already recorded by High Court in appeal - In review, wife cannot argue that interim application seeking permanent alimony or directions issued by High Court in writ petition were not considered - Interim order will be in operation till final order is passed. Hindu Marriage Act (25 of 1955), S. 25.

       CODE OF CIVIL PROCEDURE, 1908 [C.A. No. 5/1908] - Order 47, Rule 1 - Review - Jurisdiction - Repetition of old and overruled arguments not enough to reopen concluded adjudication.

       HINDU MARRIAGE ACT, 1955 [C.A. NO. 25/1955] - Section 25 - Interim application for maintenance - In main petition for divorce, there was also interim application for permanent alimony - Plea of wife that it was obligatory on part of Trial Court to decide interim application - All these aspects already recorded by High Court in appeal - In review, wife cannot argue that interim application seeking permanent alimony or directions issued by High Court in writ petition were not considered - Interim order will be in operation till final order is passed.

ORDER :

1. This review petition is directed against the order dated 1.7.2017 passed in M.F.A. No.4293/2017, whereby the appeal filed by the appellant/petitioner has been disposed of with certain observations.

2. This review petition is filed along with I.A. No.1/2018 to condone the delay of 220 days in filing the review petition. Since, no notice was issued to the respondent in the main matter [MFA No.4923/2017], to consider for issuance of notice on this I.A. No.1/2018, we have examined the case on merits.

3. Briefly stated the facts are: The petitioner is the legally wedded wife of the respondent. The couple have two children who are minors and are in the custody of the petitioner. At the first instance, the petitioner and respondent filed a joint petition in M.C. No.2852/2007 for divorce by mutual consent before the Principal Family Court at Bengaluru, which came to be dismissed. Subsequently, the respondent filed M.C. No.665/2012 before the Family Court to dissolve the marriage with the petitioner. The petitioner contested the matter. In the said proceedings, petitioner filed interim application [I.A. No.2] seeking permanent alimony from the respondent. Writ Petition No.20615/2015 was filed by the petitioner challenging the order of maintenance awarded by the Family Court in M.C. No.665/2012. The said writ petition came to be disposed of on 4.12.2015 with the following observations:

“2. Having regard to the substantial income of the respondent and though the petitioner is also said to be employed and said to be terminated from service from at least two companies on account of her continued absence, as she had to take care of her ailing child, the interim maintenance awarded by the trial court stands enhanced to Rs.45,000/- per month which shall be paid from 2.5.2015 till date and the respondent shall continue to pay the interim maintenance at the same rate till the disposal of the main petition. This order is subject to modification by the trial court depending on the evidence tendered before it insofar as maintenance or alimony, as the case may be, which may be ordered, in favour of the petitioner wife.

3. Insofar as the further claim of the petitioner as regards large expenses incurred and the expenses that she foresees for the children’s education and for medical expenses of her daughter, which is strongly disputed by the respondent, shall also be examined by the trial court in fixing the amount that shall be paid by the respondent. This order of interim maintenance therefore is dependant on the final order that may be passed.”

4. Subsequently, M.C. No.665/2012 was finally heard and came to be dismissed. Aggrieved by the same, petitioner filed MFA No.4293/2017 before this Court. This Court disposed of the matter, observing that the petitioner has not made out a case to challenge the order passed by the Family Court, which was preferred by the respondent-husband. Aggrieved by the same, petitioner preferred Special Leave to Appeal [C] No.4740/2018 before the Hon’ble Apex Court. The Hon’ble Apex Court has observed thus:

“We are not inclined to interfere in the impugned order passed by the High Court.

However, it will be open for the petitioner to file an application for review of the order impugned in the present Special Leave Petition.

The Special Leave Petition is dismissed with the aforesaid observation.”

5. Accordingly, petitioner has preferred this review petition.

6. Learned Counsel Sri. Ravindranath Kamath, appearing for the petitioner would vehemently contend that the order passed by this Court in MFA No.4293/2017 has to be reviewed on three counts. Firstly, this Court failed to consider Section 25 of the Hindu Marriage Act, 1955 [‘Act’, for short], in the right perspective. Elaborating the arguments on this point, learned Counsel submitted that Section 25 of the Act contemplates, any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to i































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