HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT JAMMU Case No: RP No. 116/2022 c/w MA No. 195/2016 & CM No. 6351/2023 CM No. 2166/2024 Pronounced on : 03.01.2025 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. Through :- ...Respondent.. 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 Sr. No. 7 2 RP No. 116/2022 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 4 RP No. 116/2022 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 7 RP No. 116/2022 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 Chopra Whether the order is speaking? Yes Whether the order is reportable? Yes/No Pawan Chopra 2025.01.04 11:47 I attest to the accuracy and integrity of this document