Amit Sharma vs Rakhee Sharma
2023 Latest Caselaw 367 j&K

                                                                          Sr. No. 2

      HIGH COURT OF JAMMU & KASHMIR AND LADAKH
                      AT JAMMU
                                                    Pronounced on : 24.02.2023
                                                     RP No. 116/2022
                                                     CM No. 5303/2022

Amit Sharma                                            .....Appellant(s)/ Petitioner(s)

                       Through :- Mr. Rahul Pant, Sr. Advocate with
                                  Mr. Vivek Sharma, Advocate &
                                  Mr. Rajnish Raina, Advocate.

                  Vs

Rakhee Sharma                                          .....Respondent(s)

                       Through :- Mr. B.S.Manhas, Advocate with
                                  Mr. Amarvir Singh Manhas, Advocate.

Coram:     HON'BLE MR. JUSTICE PUNEET GUPTA, JUDGE
                                      ORDER

1. The review petition has been preferred by the petitioner, respondent in

appeal bearing No. MA No. 195/2016 decided on 02.09.2022, on the

ground that there is an error apparent on record in the judgment passed

in the appeal. The precise submission is that the court while deciding the

appeal has held the impleadment of alleged adulterer as necessary party

respondent in the petition filed under the Jammu and Kashmir Hindu

Marriage Act, 1980 (hereinafter called 'the Act'). The reference to Rule

10 in the judgment was not applicable in the case as the said Rule was

framed under the Jammu and Kashmir Hindu Marriage Act, 1955 which

stood repealed by the Jammu and Kashmir Hindu Marriage Act, 1980

and the Rules framed under the Act of 1955 were not saved under the

Act of 1980. As no Rule was framed under the Act of 1980 for

impleadment of the alleged adulterer in the petition filed under the

provisions of the Act, the reliance upon the said Rule was misconceived.

The cruelty aspect raised in the divorce petition was also not dealt with

by this court while deciding the appeal is also the case of the petitioner

herein.

2. The objections have been filed to the review petition by the respondent,

appellant in the appeal, wherein it is submitted that there is no error

apparent on the face of record which requires review of the judgment in

question. The reference is also made to Section 24 of the General

Clauses Act in order to impress upon the court that the Rules framed

under the Act of 1955 are saved under the Act though no Rules have

been framed under the Act of 1980.

3. Mr. Rahul Pant, learned Senior Advocate appearing on behalf of the

petitioner herein has argued in tune with the stand taken in the review

petition.

4. Mr. B.S.Manhas, learned counsel appearing for the respondent has

argued that the plea taken by the petitioner in the review petition was

available to the petitioner at the time of final arguments but failed to

do so. There is no error apparent on the face of record which requires

re-visitation of the matter. The petitioner infact intends to open the

factual aspects of the matter which is not permissible in terms of Order

47 CPC. The review petition is not maintainable.

5. Mr. Rahul Pant, learned senior counsel in rebuttal has argued that even

if the aspect of applicability/non-applicability of any provision of law

which stands repealed is not brought to the knowledge of the court at the

time of argument and the court has decided the case on the assumption

that the provision of law is applicable/non-applicable the same amounts

to error apparent on the face of record as there can be no estoppel

against the Statute. The court erred in passing the judgment as wrong

provision of law was referred to while deciding the judgment. The

present petition is maintainable.

6. The court while deciding the appeal preferred against the judgment and

decree passed by the learned trial court in the petition filed under

Section 13 of the Jammu and Kashmir Hindu Marriage Act, 1980 relied

upon Rule 10 of Rules framed under the Hindu Marriage Act, 1955. The

Rules were framed in the year 1970. The court while recording its

finding held that impleadment of the alleged adulterer as respondent in

the petition was imperative as per Rule 10 of the Rules. Admittedly, it

was not brought to the notice of the court at the time of final arguments

that Rule 10 of the Rules of 1970 was framed under the Old Act of 1955

and there is no such Rule framed under the Act of 1980. Infact no Rules

have been framed under the Act of 1980 till date. Inadvertently, it also

skipped the attention of the court that no Rules under the Act of 1980

have been framed and the Rule 10 if can be invoked under the Act of

1980. There can be no dispute with the proposition of law that there can

be no estoppel against the Statute. If the court decides the matter on the

basis of the provision of law which has no force or stands repealed then,

of course, the order relying upon such provision will amount to error

apparent on the face of record though such plea of non-application of the

provision was available to the party when the arguments were heard in

the matter though not taken at that time.

7. The question which still requires determination is if Rule 10 of Rules

framed in 1970 under Act of 1955 is saved under the Act of 1980. The

learned counsel for the respondent has relied upon Section 24 of the

General Clauses Act. Mr. Manhas appearing for the respondent herein

has argued that in any case Rules of 1970 continue to be in force inspite

of repealing of Act of 1955 and enactment of Act of 1980. Mr. Pant, on

the other hand, rebuts the argument of the counsel for the respondent.

He also relies upon Section 36 of New Act and impresses upon the court

that the Section does not save the Rules framed under Old Act of 1955.

8. Section 24 of the General Clauses Act states that any appointment,

notification, order, scheme, Rules, form or bye-law made or issued

under the repealed Act or Regulation if not inconsistent with the

provisions of re-enacted Act shall continue in force and deemed to be

made or issued under the provisions of so re-enacted Act or Regulation

unless it is superseded by any appointment, notification, order, scheme,

Rules, form or bye-law made or issued under the provisions of so

re-enacted Act or Regulation.

9. The impleadment of adulterer in the petition filed for divorce under old

Act is necessary in terms of Rule 10 unless the court otherwise holds

that there is no necessity for the same. The said Rule of impleadment of

adulterer cannot be necessarily imported into new enactment of 1980 on

the basis of Section 24 of the General Clauses Act as the same will not

be in consistence with the provisions of the new Act of 1980. The party

cannot be non-suited only on the basis of Rule 10 when the petition is

filed under the Act of 1980. Section 36 of new Act also does not

incorporate the saving of said Rule framed under the old Act. The

judgment JKJ Soft/1552 titled 'Kulwant Kour vs. Surjeet Singh' will not

apply in the case in hand as mentioned in the impugned judgment passed

by this court in view of the fact that the court had passed the judgment in

Kulwant Kour (supra) in the light of Rule 10 framed under the old Act.

The court holding that the adulterer was necessary party in the light of

Rule 10 of 1970 Rules does not sustain in the present case.

10. Mr. Manhas, learned counsel appearing for the respondent has also

argued that the petitioner herein cannot bank upon the non-applicability

of Rules of 1970 in the present petition as the divorce petition was

framed as per the said Rules. The court is of the considered view that

this argument of the learned counsel does not carry weight as the

framing of the petition cannot by itself cause prejudice to the case of the

petitioner on the aforesaid ground as the same is just procedural aspect.

11. The petitioner herein has also contended that in the divorce petition

adultery was not pleaded but cruelty was the ground for seeking divorce

and in any case the aspect of cruelty was not considered by the court and

no finding was recorded in the appeal on that issue. The respondent, on

the other hand, has argued that the matter has attained finality and only

factual aspects are pleaded for determination which is not permissible.

12. The court while deciding the appeal has not touched the issue of cruelty

though issue is framed in the divorce petition. This court ought to have

discussed the issue of cruelty also irrespective of finding on the issue

No.1 framed in the divorce petition instead of deciding only on the

aspect of adultery as discussed in the judgment of which the review is

sought. The finding of the court that the divorce petition being based

upon the adultery of the respondent and, therefore, cannot grant divorce

on ground of cruelty requires consideration and so is that the divorce

petition is based upon the allegations essentially of adultery.

13. The judgments have been cited regarding the principles when the court

can review the order on the ground that there is error appearance on the

face of record. The court need not refer the same as there can be no

dispute as to what has been held in the judgments.

14. In the light of the discussion made above, the court holds that there is

error apparent on the face of record. The review is maintainable. The

appeal requires reconsideration on merits.

15. The file shall now come up for consideration on 06.03.2023.

(PUNEET GUPTA) JUDGE Jammu:

24.02.2023 Pawan Chopra

Whether the order is speaking: Yes/No Whether the order is reportable: Yes/No

PAWAN CHOPRA 2023.02.27 12:59 I attest to the accuracy and integrity of this document