Jammu & Kashmir High Court
Amit Sharma vs Rakhee Sharma on 3 January, 2025
Author: Puneet Gupta
Bench: Puneet Gupta
Sr. No. 7
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
Pronounced on : 03.01.2025
Case No: RP No. 116/2022
c/w
MA No. 195/2016 &
CM No. 6351/2023
CM No. 2166/2024
Amit Sharma, Age 44 years,
S/o Late Shri Baldev Sharma,
R/o 28-C, C/D,
Gandhi Nagar, Jammu. ...Petitioner..
Through :-Mr. Rahul Pant, Sr. Advocate with
Mr. Vivek Sharma, Advocate,
Mr. Rajnish Raina, Advocate &
Mr. Rishu Rajehswar, Advocate.
Vs
Rakhee Sharma,
W/o Shri Amit Sharma,
R/o 298-300, Shastri Nagar, Jammu. ...Respondent..
Through :- Mr. Amarvir Singh Manhas,
Advocate & Ms. Pooja Pandit,
Advocate.
Coram: HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
ORDER
1. In the appeal filed by Rakhee Sharma against the judgment and decree
dated 20.10.2016 passed by the learned Additional District Judge
(Matrimonial Cases), Jammu, this Court vide judgment dated 02.09.2022
set aside the judgment and decree of the trial court primarily on the
ground that the adulterer was required to be impleaded in the suit filed by
the plaintiff (Amit Sharma) under Section 13 of the Jammu and Kashmir
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Hindu Marriage Act. The respondent in the appeal namely, Amit Sharma
filed review petition against the judgment and decree passed by this Court
in the appeal. The Court vide order dated 24.02.2023 held the review to
be maintainable and that the appeal requires reconsideration on merits.
The appellant-Rakhi Sharma filed Civil Appeal No. 3391/2023 against
the aforementioned order dated 24.02.2023. The Hon’ble Apex Court
vide order dated 04.05.2023 directed this Court to hear the review petition
on its own merits without being influenced by any observations made in
the impugned order. This Court again passed order in the review petition
vide dated 16.09.2023 and directed that the appeal be heard on merits in
terms of the order passed in the review petition. Aggrieved by the
aforesaid order, the respondent-Rakhee Sharma again preferred SLP
(Civil) No. 25920/2023. The Apex Court decided the appeal vide dated
09.02.2024. The Apex Court again remanded the matter to this Court for
consideration afresh in the light of the specific direction passed by earlier
the Apex Court vide dated 04.05.2023 (supra). This is how the review
petition was again heard.
2. The Court while passing the judgment and decree in the appeal filed by
Rakhee Sharma had held that the suit was necessarily based upon the
adultery aspect and that Amit Goel was required to be impleaded as
respondent in the suit as the adultery was alleged by the plaintiff between
his wife and said Amit Goel. In the absence of said Amit Goel, the suit
could not be decreed.
3. In the review petition, it is pleaded by the review petitioner that the suit
was filed by the plaintiff-Amit Sharma on the basis of cruelty and the
plaintiff had not pleaded in the suit that the wife of the plaintiff had
sexual intercourse with Amit Goel which is one of the grounds for
divorce under Section 13 (1) of the Jammu and Kashmir Hindu Marriage
Act, 1980. It is also pleaded that Rule 10 of Hindu Marriage Jammu and
Kashmir Rules, 1970 had no applicability as the Act under which the
3 RP No. 116/2022
rules were framed stood repealed and the new Act of 1980 had come into
force. As the principal Act itself stood repealed the rules framed under
1970 Rules could not apply to the suit filed under the Act of 1980. It is
also pleaded that the issue of cruelty could be determined independently
in view of what had been pleaded and irrespective of the issue of adultery
framed by the trial court. There is error apparent on the face of record in
the judgment under review is the submission made in the petition.
4. The objections to the review petition have been filed by the respondent-
wife wherein it is submitted that there is no error apparent on the face of
record in the judgment of which the review is sought for by the petitioner-
husband. Section 24 of the General Clauses Act saves the Rules of 1970.
The petitioner had not pleaded Rule 10 earlier though the said ground was
available to the petitioner before this Court. The petitioner through the
medium of review petition seeks determination of factual aspects of the
case. The petitioner herein was required to approach higher forum in case
he was aggrieved of the judgment and decree passed by this Court in
appeal. The written submissions have also been filed by the parties and
are on record.
5. Mr. Rahul Pant, learned Senior counsel appearing for the review
petitioner while reiterating the submissions made in the review petition
has argued that there is error apparent on the face of record which has
crept in the judgment and decree passed by this Court. The Rule 10
(supra) framed under Jammu and Kashmir Hindu Marriage Act, 1955
cannot be applied when the suit is filed under the 1980 Act and that the
cruelty being one of the distinct grounds for divorce under Section 13 of
1980 Act. The issue of cruelty should have been decided by this Court.
The plaintiff had not pleaded adultery as a ground for divorce in the case
filed by the husband as is evident from the averments made in the suit. In
any case, Rule 10 even if applicable cannot strike out the case of the
plaintiff for non-joinder of adulterer as party respondent in the case as the
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trial court did not consider it necessary to implead the adulterer as party
defendant in the suit. Indeed, it is also submitted that the word ‘adultery’
is not to be found in the new Act of 1980.
6. Mr. Amarvir Singh Manhas, learned counsel appearing for the
respondent-wife has referred to the judgment passed by this Court and has
submitted that the petitioner is infact raising the factual aspects of the
case and there is no error apparent on the face of record. It is also pleaded
that Rule 10 of 1970 Rules framed under HM Act, 1970 continue to
operate and apply as the same is not inconsistent with the provisions of
1980 HM Act. The petitioner should have raised the inapplicability of
Rule 10 when the appeal was heard.
7. The applicability of 1970 Rules or more specifically Rule 10 of 1970
Rules if mandatorily continues to be applicable under the new Act of
1980 though the Rule was made under 1955 Act requires determination.
During the course of arguments, Section 24 of General Clauses Act was
also referred to by the parties. It was submitted on behalf of respondent-
wife that the said Section saves the Rules of 1970 under 1980 Act though
framed under the 1955 Act.
8. In the Act of 1980 apparently the only saving clause pertaining to HM
Act, 1955 is to be found in Section 36 of 1980 Act. The perusal of said
Section reveals that what has been saved by this Section is the validity of
marriage solemnised prior to commencement of 1980 Act and also any
legal proceeding under the old Act and the allied matters or any
obligation that may have already incurred before coming into force of
1980 Act. There is no reference to the Rules and Regulations that may
have been framed under 1955 Act.
9. As the Act of 1955 stood repealed and new Act came into operation in
1980 every rule or regulation which may have been framed under the old
Act will not apply under the new Act. Even if the Regulations or the
Rules framed under the old Act have application under the new Act but
5 RP No. 116/2022
the Rules and Regulations framed under the old Act cannot be applied in
all circumstances so as to non-suit the party to the proceedings taken
under the new Act. Mr. Manhas, counsel for the respondent, has
emphatically argued that the Rules framed under 1970 cannot said to be
inconsistent with the provisions of Section 13 of 1980 Act and have to be
essentially observed while resorting to the provisions under 1980 Act.
10. Section 24 of General Clauses Act provides that where any Act or
Regulation is repealed and re-enacted with or without modification after
the commencement of General Clauses Act any Notification, Order,
Scheme, Rules, Form etc. made or issued under the repealed Act or
Regulation shall continue to be in force if not in consistent with the
provisions re-enacted. The earlier Notification, Rules and Form etc. shall
deemed to have been made or issued under the provisions of re-enacted
Act, the same shall be applicable unless superseded by other Notification,
Order, Rules etc.
11. The learned counsel for the respondent has referred to 1962 (1) SCR 9
titled ‘The Chief Inspector of Mines and Ors. Vs. Karam Chand Thapar
and Ors.‘ and 1973 SCR (1) 675 titled ‘Neel & Nirenjan Majumdar Vs.
The State of West Bengal‘ in support of his contention that the Rules of
1970 framed under the Act of 1955 hold good even under 1980 Act in
view of Section 24 of Jammu and Kashmir General Clauses Act. There
can be no quarrel with what has been held by the Hon’ble Supreme Court
in those cases keeping in view the facts of those cases. Section 24 of
General Clauses Act when read in conjunction with Rule 10 of 1970
Rules cannot non-suit the party to the proceedings taken under new Act
unless it was imperative to apply or stick to the Rules of 1970 in the new
Act also. The grounds of divorce under the new Act are somewhat
different from what they had been under the old Act as applicable to the
then State of Jammu and Kashmir. In any case, Rule 10 which refers to
the impleadment of adulterer as party in the suit is a procedural
6 RP No. 116/2022
requirement which cannot have mandatory application under the new Act
of 1980.
12. The court having held that Rule 10 of 1970 Rules framed under 1970 Act
is not having mandatory application in the case filed under 1980 Act, the
corollary to the same is that the issue of cruelty framed by the trial court
was required to be determined independently in the appeal when the
cruelty is one of the grounds for seeking divorce.
13. The argument of the counsel for the respondent-wife that infact the
averments contained in the plaint point towards the adultery committed
by the wife, as such, the plea of cruelty raised by the husband in the plaint
is only a camouflage. The court while passing the judgment and decree
has specifically come to the conclusion that it is the adultery which has
been pleaded by the plaintiff in the plaint and this being a finding of fact
the review cannot be entertained.
14. The argument of the respondent is without force as the court has held that
impleadment of Amit Goel with whom the wife of the petitioner Amit
Sharma is alleged to have such relationship which amounts to cruelty is
not necessarily required in the suit and the issue of cruelty is required to
be considered separately in the appeal. The plaintiff-husband succeeds or
not in the appeal on the ground of cruelty is a separate issue.
15. The Court having held that Rule 10 shall have no applicability to the suit
filed under the new Act of 1980, the issue of cruelty should be decided, in
any case, independently of the adultery aspect which too has otherwise
gone under change in the new Act. The trial court has framed the issue of
cruelty. The Court is of the considered view that there is error apparent on
the face of record.
16. It may be mentioned herein that though the applicability/non-applicability
of Rule 10 of 1970 Rules was not pleaded during the course of appeal,
however, the same could be considered in the review petition as purely
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the legal aspect is raised which has its consequences to the
maintainability of the suit filed by the petitioner-husband.
17. In view of the discussion made above, the review petition is accepted.
The appeal is required to be heard again on merits.
18. List on 12.02.2025.
(PUNEET GUPTA)
JUDGE
Jammu:
03.01.2025
Pawan ChopraWhether the order is speaking? Yes
Whether the order is reportable? Yes/NoPawan Chopra
2025.01.04 11:47
I attest to the accuracy and
integrity of this document