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2022 DIGILAW 466 (JK)

Rakhee Sharma v. Amit Sharma

2022-09-02

PUNEET GUPTA

body2022
JUDGMENT 1. The appellant-wife aggrieved by judgment and decree dated 20.10.2016 passed by the court of learned Additional District Judge, (Matrimonial cases), Jammu has preferred the appeal on the grounds mentioned therein. The trial court has allowed the petition filed for dissolution of marriage in terms of Section 13 of the Hindu Marriage Act by the respondent-husband against the appellant-wife. 2. The trial court vide order dated 02.05.2012 framed issues in the petition which read as under: 1) Whether the petitioner has filed the petition on the ground of adultery without implicating adultisor as respondent; if so what is its effect? OPR 2) Whether the respondent has treated the petitioner with cruelty? OPP 3) Relief. O.P.Parties 3. The issue No.1 pertains to the maintainability of the petition, itself, filed by the respondent herein. The trial court has not been properly dealt with the issue and the finding given by the court on the said issue does not sustain in the eyes of law is the contention raised by the appellant in the appeal. The argument raised is that the petition filed by the respondent was not maintainable for the reason that the respondent had infact sought divorce on the ground of adultery but did not implead the alleged adulterer as co-respondent in the divorce petition. 4. Mr. B.S.Manhas learned counsel for the appellant herein has taken the court through the petition filed for divorce by the respondent in order to put forth his argument. It is submitted that for all intents and purposes the petition refers to the adultery which has been committed by the appellant herein with one Amit Goel and, thus, the divorce petition filed seeking divorce on the ground of cruelty is only a disguise. In the absence of said Amit Goel, the petition was not maintainable in terms of Rule 10 of the Rules framed under the Jammu and Kashmir Hindu Marriage Act (hereinafter called 'The Act'). 5. Mr. Rahul Pant learned Senior counsel appearing for the respondent has vehemently argued that the petition was filed on the ground of cruelty only and there is no pleading to the effect that the petition has been filed on ground of adultery against the wife by the husband and, therefore, the petition was maintainable. Rule 10 has no application in the case in hand. The decree could be passed on the ground of cruelty. Rule 10 has no application in the case in hand. The decree could be passed on the ground of cruelty. Photocopy of the trial court record is before the court. 6. In order to appreciate the arguments of the learned counsel for the parties, the court in the first instance is required to go through the very petition filed by the respondent-husband in terms of Section 13 of the Act. It may be mentioned herein that the learned trial court while deciding crucial issue has held that the petitioner-husband has not projected ground of adultery as envisaged under Section 13 (1) (i) of the Hindu Marriage Act for grant of decree of divorce and has pleaded acts of omission and commission relating to immorality, infidelity, unchastity and unfaithfulness on the part of the respondent as a ground of cruelty within the meaning of Section 13 (1) (II) of the Hindu Marriage Act and, thus, the petitioner was not required to array the adulterer as co-respondent in the present petition. 7. It appears from the petition filed under Section 13 of the Act that the relationship between the parties remained normal only for an year or so and thereafter the relationship became sour. The perusal of para (f) of the petition further reveals that Amit Goel intrudes into the married life of the couple from the year 2006. Amit Goel is introduced as a classmate of the wife of the petitioner as per the pleadings. The petition states of the proximity between the wife of the petitioner and Amit Goel and the petitioner even noticing in February 2010 that Amit Goel leaving the bedroom of the petitioner and jumping over the boundary wall of the house and the wife making the son of the couple sleep in another bedroom so that she could enjoy exclusive time with Amit Goel. The petition also refers to the wife remaining with Amit Goel for long hours in rented accommodation at Trikuta Nagar and Channi Himmat on everyday basis till late evening and the wife of the petitioner and Amit Goel having intimate talks on mobile phones and having messages through secret SIM numbers. The petition also alleges that the petitioner-husband saw his wife and Amit Goel holding hands and kissing each other in a car near the house of in laws on 16.12.2010. The petition also alleges that the petitioner-husband saw his wife and Amit Goel holding hands and kissing each other in a car near the house of in laws on 16.12.2010. The petition also reveals of incident of 11.04.2010 when the wife of Amit Goel is stated to have caught the wife of the petitioner with Amit Goel in Hotel Riviera, Jammu in a compromising pose and the petitioner coming to know of the said act through newspapers on 13.04.2010. It is also significantly mentioned in the petition that the wife of the petitioner even mentioned the husband of her intimate relationship with Amit Goel and their acting like husband and wife. The petition of course also refers to certain other instances wherein the complaints came to be filed by the parties before the police agencies. It is in the light of the aforesaid pleadings that this court is required to determine as to whether the petition filed by the husband for divorce necessarily is based upon the ground of adultery of the wife and not on the basis of cruelty as per the provisions of the Hindu Marriage Act. It may also be mentioned herein that the petitioner-husband filed his affidavit as piece of evidence before the trial court and reiterated in it what had been pleaded by him in the divorce petition. The sum and substance of the petition is required to be looked into and not the mere phrasing of the same. The petition may be apparently devoid of the words adulterous relationship of the respondent-wife with Amit Goel yet the instances of divorce petition of which reference is made by the court above reveal that the petition undoubtedly points towards the alleged adulterous relationship that the wife of the petitioner had with Amit Goel during the subsistence of marriage. It may be convenient for the respondent herein to contend that the petition is based upon the ground of cruelty but it is not so. It cannot be denied even from the mere cursory look at the petition that the relation that the wife had allegedly developed with Amit Goel is at fore of the petition. Not only the character/chastity of wife of the respondent herein is in picture but the divorce petition obviously also makes imputation against Amit Goel who is stated to be in relationship with the wife of the respondent herein. Not only the character/chastity of wife of the respondent herein is in picture but the divorce petition obviously also makes imputation against Amit Goel who is stated to be in relationship with the wife of the respondent herein. The divorce petition, to say the least, itself refers to the instance of wife of Amit Goel having seen her husband in compromising position with the wife of the respondent herein which shows that the respondent herein has himself based the adulterous relationship of his wife with Amit Goel as a ground for divorce. 8. The court may at this stage resort to Rule 10 of Rules framed under the Hindu Marriage Act which finds echo in the judgment in case titled Kulwant Kour Vs. Surjeet Singh and another reported in JKJ Soft JKJ/1552 wherein this court while dealing with Rule 10 framed under the Act held that the Rule enjoins upon the petitioner to implead the alleged adulterer or adulteress a co-respondent in the petition or swear an affidavit stating therein the reason why it is not possible to do so. The court held the Rule to be mandatory in nature. As per Rule 10 the petitioner can be excused from making the alleged adulterer or adulteress as co-respondent to the petition on the grounds mentioned in the Rule itself. The exemption can be on the basis that the name of such person is not known to the petitioner or that such person is dead or the respondent is a woman and leading life of prostitute and the petitioner does not know of the person with whom adultery has been committed. The court can excuse for impleading the adulterer or adulteress as co-respondent in the petition if the court for some reason considers it sufficient to do so. Indeed, the reason for framing Rule 10 is that not only the respondent but the alleged adulterer or adulteress whose character stands questioned by the petitioner is given opportunity to defend his or her character assassination. 9. Indeed, the reason for framing Rule 10 is that not only the respondent but the alleged adulterer or adulteress whose character stands questioned by the petitioner is given opportunity to defend his or her character assassination. 9. In the light of the above, it can be held without any doubt that in case the court is of the view that the petition speaks of adulterous character of the respondent then the application of Rule 10 which mandates to implead adulterer or adulteress as co-respondent cannot be done away with and the petitioner has no option but to implead such person as co-respondent in the petition. Mr. Pant, learned Senior counsel for the respondent, in all fairness conceded that in case the court comes to conclusion that the suit is based upon adultery then application of Rule 10 is imperative and adulterer or adulterous is to be made corespondent in the divorce petition. 10. The learned Senior counsel appearing for the respondent-husband has referred to the Judgments of Kerala High Court reported in 2019 (2) KLT 218 and 2019(2) DMC 718 in order to impress upon the Court that the decree could be granted in the case in hand on the ground of cruelty and without impleading the adulterer as party to the petition. The Court is of the view that both the judgments are not of help to the respondent in view of the fact that the divorce petition itself highlights the alleged adulterous relationship between the wife of the respondent herein and Amit Goel. The judgment of this Court in Kulwant Kour (supra) comes in the way of the argument raised by the respondenthusband. The Court is not convinced with the argument of Mr. Rahul Pant that the divorce in the present case could be granted by the trial court on the ground of cruelty. It is significant to note that Section 13 (1) (i) of the Act provides that the divorce can be granted on the basis of adultery and Section 13 (1) (ii) also provides for divorce on the ground of cruelty. Rahul Pant that the divorce in the present case could be granted by the trial court on the ground of cruelty. It is significant to note that Section 13 (1) (i) of the Act provides that the divorce can be granted on the basis of adultery and Section 13 (1) (ii) also provides for divorce on the ground of cruelty. If the divorce petition is based upon the adultery of the respondent, the court cannot grant the divorce on the basis of cruelty holding the adultery as cruelty also as if it to be held so then the distinction provided in granting the divorce on the basis of adultery and also cruelty will 'wither away' and that cannot be the purport of the provisions of the Act. 11. In view of what has been held above, the Court is of the considered view that the trial court has not correctly decided the Issue no.1. The finding given by the learned trial Court on the said issue is, therefore, set aside. Amit Goel was required to be impleaded as co-respondent in terms of Rule 10 in the divorce petition, filed by the respondenthusband. 12. Issue no.2: The said issue need not detain the court any longer in view of what has been held by the court while deciding the Issue no.1 in the appeal. As this court has also on the strength of contents of the divorce petition filed by the respondent-husband held that Amit Goel was required to be made co-respondent in the divorce petition as petition is basically referring to the adulterous relationship of the wife of the respondent herein with Amit Goel, the Court should refrain from giving any finding on the said relationship in the absence of Amit Goel in the proceedings filed under Section 13 of the Act. The conclusion drawn by the trial court on the issue of cruelty becomes redundant in view of what has been held above by this court. 13. Accordingly, in view of the findings of this Court, the appeal is allowed and the divorce petition filed by respondent-husband is dismissed.