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, ...Respondent..

R/o 298-300, Shastri Nagar, Jammu.

Through :- M r . 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 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 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 th