MCA-607-22 1/4
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
MISC. CIVIL APPLICATION NO.607 OF 2022
IN
FAMILY COURT APPEAL NO.175 OF 2014
Leeni w/o Chandrakant Sardar,
Nava Nakasha, Nagpur
-vs-
Chandrakant s/o Haridas Sardar,
Bezonbagh, Nagpur
Ms Leeni C. Sardar, applicant in person.
Smt Padma Chandekar, Advocate for non-applicant.
CORAM : A. S. CHANDURKAR AND URMILA JOSHI-PHALKE, JJ.
DATE : October 06, 2022
P.C.
By this application the applicant seeks review of the judgment dated
12/03/2020 passed in Family Court Appeal No.175/2014. By the said order
the Family Court Appeal came to be dismissed thus upholding the judgment of
the Family Court thereby dissolving the marriage between the applicant and
non-applicant under Section 13(1) (i-a) of the Hindu Marriage Act, 1955.
In the application it has been stated that the judgment of this Court
dated 12/03/2020 was challenged before the Honourable Supreme Court and
the Special Leave Petition came to be dismissed on 18/11/2020.
Notwithstanding such dismissal it has been stated that in view of the decision
in Kunhayammed vs. State of Kerala (2000) 6 SCC 359, the review
application was tenable. The grounds for review have been mentioned in the
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application.
2. The applicant has placed on record her written notes in view of the
liberty granted on 16/09/2022. The applicant has also sought to rely upon
the judgment of Honourable Supreme Court in Civil Appeal No.1957/2006
(Neelam Kumar vs. Dayarani) dated 06/07/2010 and the judgment of the
learned Single Judge at the Principal Seat in Writ Petition No.6276 (Ariz Kohli
vs. Tehzeeb Kohli) dated 07/07/2022.
3. The order under review was challenged before the Honourable
Supreme Court unsuccessfully. Despite this, since the Special Leave Petition
was dismissed in limine the review application would be maintainable in view
of the decision in Khoday Distilleries Ltd. and ors. Sri Mahadeshwara
Sahakara Sakkare Karkhane Ltd. Kollegal (Under Liquidation) Rep. By the
Liquidator (2019) 4 SCC 376. We have therefore perused the written notes
of arguments as well as the documents filed alongwith it.
The learned counsel for the non-applicant opposed the review
application.
4. It is urged that initially the non-applicant herein had sought the relief
of restitution of conjugal rights. However, by amending his pleadings that
prayer was given up and instead the relief of dissolution of marriage was
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sought. The Family Court granted the relief of dissolution of marriage. In this
regard the applicant has relied upon the judgment of learned Single Judge in
Ariz Kohli (supra) where too amendment of the proceedings by substituting
the relief of decree for restitution of marriage with the relief of dissolution of
marriage was sought. It was held that the relief sought by way of amendment
was completely extrinsic and alien to the relief initially sought in the
proceedings. On that count the amendment granted by the learned Judge of
the Family Court was disallowed by learned Single Judge. While doing so, it
was held by learned Single Judge that the judgment of the Division Bench in
Uttara Praveen Thool vs. Praveen Bhanudas Thool 2014(2) Mh.L.J. 321 was
held to fall within the spectrum of per incurriam and thus not a binding
precedent.
5. For the sake of record we may state that respondent in Ariz Kohli
(supra) challenged the judgment of learned Single Judge before the
Honourable Supreme Court. In Special Leave Petition (Civil) No.14381/2022
(Tehzeeb Kohli vs. Ariz Kohli) the following order was passed on
29/08/2022 :
“ While we may have reservation on the reasoning given in the
impugned judgment, we are not inclined to issue notice as the petitioner
has liberty to file a fresh petition for divorce. Issuing notice may, in fact,
cause delay in adjudication.
Recording the aforesaid, the petition for special leave to appeal is
dismissed, leaving it open to the petitioner, if advised, to file a petition for
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divorce. ”
6. Since the Honourable Supreme Court has expressed reservation on
the reasoning of learned Single Judge in Ariz Kohli (supra), we would prefer
to follow the judgment of the Division Bench in Uttara Praveen Thool (supra)
on the permissibility of seeking leave to amend so as to claim an additional
relief in the alternative in the same proceedings. Hence, the judgment of
learned Single Judge in this backdrop cannot be relied upon.
7. We find that the applicant seeks to urge various grounds that would
entail re-hearing of the appeal afresh. Such exercise would transgress review
jurisdiction in absence of any error apparent on the face of record. We do not
find any error apparent in the judgment under review dated 12/03/2020.
The other decisions relied upon by the applicant also do not persuade us to
exercise review jurisdiction. Hence for aforesaid reasons, the application
stands dismissed with no order as to costs.
(Urmila Joshi-Phalke, J.) (A. S. Chandurkar, J.)
AsmitabyASMITA
Digitally signed
ADWAIT BHANDAKKAR
Signing Date:06.10.2022
19:05:10
