Madhya Pradesh High Court
Mohan Swaroop Chouhan vs Smt. Mohini Chouhan on 7 February, 2017
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R.P. No.44/2017
(Mohan Swaroop Vs. Smt. Mohini Chouhan)
07.02.2017
Shri Prashant Sharma, Advocate for the petitioner.
Shri Vivek Khedkar, Advocate for the respondent.
1. The instant petition seeks review of the final order dated 25.11.2016 passed in F.A. No. 211/2016 whereby the first appeal in question was disposed of with the following directions:
Accordingly, the present appeal is disposed of with liberty to the appellant that in case application under Section 24 of HMA is moved afresh in the pending proceedings Section under Section 25(1) of HMA by the wife within a period of 30 days from today alongwith copy of this order, then the same shall be considered on its own merits without being influenced by passing of the order dated 04.11.2016 and by the fact of appellant having approached this Court.
No cost.
2. Learned counsel for the review petitioner primarily contends that the petitioner husband was not heard when the first appeal was disposed of at the very outset without issuance of any notice. It is further submitted that the order dated 04.11.2016 rejecting the application u/S 24 of Hindu Marriage Act in a pending Sec 25(2) petition filed by the husband, was in favour of the husband review petitioner and before disturbing the same, the petitioner husband ought to have been heard. It is further submitted by the review 2 R.P. No.44/2017 petitioner that since the petition u/S 25(2) of Hindu Marriage Act was filed by the husband for alteration in the quantum of permanent alimony, the wife has no locus to file an application for pendente lite maintenance u/S 24 of Hindu Marriage Act.
3. A bare perusal of the order under review indicates that this Court without entering into the merits of the claim of rival parties in respect of the issue of pendente lite maintenance u/S 24 of Hindu Marriage Act held that the order dated 04.11.2016 assailed in F.A. No. 211/2016 dismissed the application u/S 24 of Hindu Marriage Act primarily due to the said application being wanting in material particulars. 3.1 Thus, this Court neither dealt with the merits of the claim of rival parties nor did it upset the order dated 04.11.2016 assailed in F.A. No. 211/16 and merely extended liberty to the wife to file a fresh application u/S 24 of Hindu Marriage Act supported by relevant material with a direction to the trial Court to decide the same without being influenced by order dated 04.11.2016 and the fact of the wife having approached this Court in first appeal.
4. Since there was no findings on merits recorded and the order dated 04.11.2016 was not set aside, no prejudice has been caused to the husband review petitioner.
5. Needless to emphasize that the husband review petitioner shall have all the defenses open to oppose the fresh application if filed by the respondent wife u/S 24 of Hindu Marriage Act.
6. In view of the above, this Court does not find any palpable error in the order under review and therefore rejects 3 R.P. No.44/2017 this review petition at the very outset.
7. With the aforesaid, petition stands disposed.
(Sheel Nagu) (S.A. Dharmadhikari)
Judge Judge
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