Arup Kumar Gupta with his daughter.Friday 19 June 2009
Thursday 18 June 2009
INTRODUCTION - I .
I advertised for my marriage in a local paper on 1987.Mr Anupom Dasgupta (address:- Darogapara, Raigarh, Dist –Raigarh, State – Chattishgarh ) and his wife send a proposal of marriage for her sister Smt Rama dasgupta to me. Marriage solemnized on 8.5.1988.The above mentioned proposal carried a false information. The age of the bride, as they mentioned, is 32 years as on 1.12.1987, but according to her office record, her date of birth is 20.12.1950.When I came to know it, I feel very upset and requested her to go away from my life. She and her family (ie, her brother, wife of brother, and she herself) is simply a gang of cheaters only.
INTRODUCTION - II .
She passed the time by this or that way, but did not go. When I understood that she is a different type – among the women, I filed a divorce case on 9.11.1993. It was my first divorce petition. The ground was – ‘Change of religion by petitioner itself’. This petition was rejected on the ground that, ‘Change of religion’ by the opposite party is the ground for divorce, not the petitioner itself.
INTRODUCTION - III.
Trial court petition (ANNEXURE A-8)
IN THE COURT OF THE VTH ADDITIONAL DISTRICT JUDGE TO THE COURT OF DISTRICT JUDGE,
BILASPUR M.P
ARUP KUMAR GUPTA ALIAS ANWAR, AGED 47 YEARS
S/O LATE S.K.GUPTA, By Profession –Service NTPC.
ADDRESS; WIRELESS OPERATOR, K.S.T.P.S., N.T.P.C.
P.O. JAMNIPALI DISTT. KORBA, M.P. PIN 495450 … …. PETITIONER
VERSUS
SMT RAMA DASGUPTA AGED ABOUT 50 YEARS.
D/O LATE P.K.DASGUPTA By Profession Teacher, Govt. School Address B-609, Block – I, Yamuna Vihar P.O. Jamnipali, Distt. Korba, M.P.Pin 495450
….. … RESPONDENT
Petition under Sec 12(1)(c), 13 (1)(ia) & (ib) of The Hindu Marriage Act, 1955
The aforesaid petitioner begs to submit as under:-
Most respectfully showeth that:-
1. The petitioner and respondent got married on 8.5.1988 at Raigarh, Distt. Raigarh M.P. according to custom prevailing in Hindu Baidya Community of Bengal.
2. The parties were last resided together at the quarter allotted to petitioner by his employer, bearing the number B-609, Block-1, Yamuna Vihar, P.O. Jamnipali Distt. Korba M.P.
3. The parties resided together till the end of January. 1955. After arising of serious consequences, the petitioner forced by the respondent to vacate the quarter. Since then, respondent is in forceful possession of the quarter till today; though the said official accommodation is legally belong to the petitioner.
4. No issue was born out of this wedlock.
5. That respondent started her matrimonial life in a fraudulent manner. The marriage was a negotiated one. At the time of marriage negotiation respondent’s brother and sister in law (brother’s wife) wrote a Letter, where they communicate that, the age of the bride (respondent) was 32 years.
The letter bearing this information written in Bengali, dated 1.12.87. But, the real date of birth of the respondent is 20.12.1950 as per her office records. Accordingly, as on 1.12.87, her actual age was 36 years 11 months 12 days say about 37 years.
According to Bengali Baidya Custom, a male do not marry a female older than him. As the party, on behalf of respondent gave false information to the petitioner, therefore the consent was obtained by fraud and attracts the provision of Sec. 12(1(c) of the Hindu Marriage Act, 1955.
Petitioner kept it secret so far considering respondent future, as well as, her well educational background, respectable professions and the social environment, where she and her brother’s family living with an expectation that the matter will amicably be solved in due course. Petitioner is an introvert person of soft nature. Petitioner continuously protested and objected to the respondent for her such fraudulent behavior and showed his unwillingness to continue such a shameful married life, since the fraud was discovered.
The fraud was discovered while respondent came with her office records for the purpose of joining the government school, Jamnipali, where she presently posted. Before marriage, the petitioner and the respondent did not know one other. At the time of marriage negotiation, the petitioner was an innocent person to the respondent and her family. It was expectation, that a person like respondent, who is well educated and in a respectable profession can not communicated a false information, very particularly where marriage is concerned. If the exact age of the respondent communicated to the petitioner, then the petitioner might not have married the respondent. This was known to the respondent and her family, and for that reason, they communicated such false statement.
This act of fraudulent behavior by the respondent to the petitioner throw him into a mental distress and dissertation, which is a treatment with cruelty, as the petitioner was absolutely innocent at that very particular period.
Therefore, again it attracts the provisions of Sec 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955.
After discovering the fraud, though both the parties were living together under the same roof, but petitioner felt alone and passes through a very critical position. Neither had he accepted and welcome the newly married respondent nor he is able to create such a position, by which, the people of surroundings, can asses the problem between the parties. Petitioner primarily requested and latter on creates pressure upon the respondent, her brother and sister-in-law for divorce. But they did not bother it, even to listen it. According to his nature, petitioner’s protest was soft but rigid.
The fraudulent behavior not only constitutes the consent obtained by fraud, but also constitutes a treatment of mental cruelty and mental dissertation.
If the respondent withdraw herself from the marriage admitting the fraudulent behavior on her part, which is an absolute truth - then it did not constitute a mental cruelty. But, when the fraudulent behavior was exposed, she forcedly tried to deny it and imposed over the petitioner - an unwanted, undesirable, matrimonial life.
This is a treatment with cruelty by respondent to the petitioner. This cruel treatment of the respondent constitutes mental cruelty and mental dissertation which converts into physical dissertation also at a latter stage.
Photocopy of the letter dated 1.12.87 bearing information about the age of respondent; English translation of Bengali letter dated 1.12.87. & Photocopy of the age proof as per office record of respondent is annexed as Annexure P-1.
6. Whenever petitioner’s parents visited petitioner at Jamipali, the respondent ill-treated them. Each and every time they experienced it.
7. In October, 1993, petitioner’s mother visited Jamnipali. In front of her, respondent told the petitioner ‘Napunsak’ (impotent). She also charged that due to petitioner’s inability. Respondent depriving from being a mother. It is a treatment with cruelty by respondent to the petitioner and liable for action under Sec 13(1)(ia) of The Hindu Marriage Act 1955.
8. Petitioner filed a case for divorce in the court of 4th A.D.J., District Court of Bilaspur, bearing no. 19-A/03, dated 9.11.93.
The copy of the petition dated 9.11.93 annexed as Annexure P-2.
The ground was the change of religion by the petitioner from Hinduism to Islam. The Hon’ble High court of Madhya Pradesh rejected the ground on 27.8.96 - against the civil revision no. 1924 of 1995. The date of Judgment order is 27.8.96.
The copy of the judgment order of M.P. High Court, dated 27.8.1996, annexed as Annexure P-3.
9. After exposing the fraudulent behavior of respondent she started treating the petitioner with cruelty. After the divorce petition filed, respondent done a series of treatment with cruelty to the petitioner. All these were duly reported before the Court of IV A.D.J. of the District Court of Bilaspur, during the proceeding of the case no. 19-A/93. These are as below:-
A) In January /Feb 1994, respondent taken away all Indira Vikas Patras and other valuable securities - which was hard earned income of the petitioner and gold ornaments given by the parents and relatives of the petitioner. Petitioner prayed for its return by application dated 30.6.94 and 5.12.94. This act and conduct of respondent treated the petitioner with cruelty.
B) Petitioner felt that it is impossible to live with respondent due to her treatment with cruelty. Respondent threatened the petitioner of severe consequences until and unless he withdraws the divorce petition. Respondent harassed, tortured and tried to blackmail the petitioner. She also took the help of communal elements. Therefore, petitioner prayed before the court that - the respondent be directed to live separately in the interest of justice, vide his application dated 5.12.94.
The application dated 5.12.94 annexed as Annexed P-4.
C) Petitioner’s brother-in-law, Mr. Anupom Kumar Dasgupta, threatened the petitioner on 28.11.94. It is reported to P.S. Darri, Korba. Photocopy of the application dated 28.12.94 annexed as annexure P-5.
D) On the early morning of 24.1.95, respondent burnt herself by fire. Petitioner reported the matter to the P.S Darri, Distt Korba Vide letter dated 24.1.95 for enquiry. Petitioner felt it - as a conspiracy against him, and strong insecurity - to live with respondent under the same roof. He compelled to leave the residence in a single wear i.e. in one pant and one shirt, which he wearied at that time.
Some time later, petitioner want to his residence to collect some clothes and other essential household items. But the respondent did not allow it. As a result of that, petitioner compelled to leave the residence permanently. Since then, petitioner staying out - from his own residence i.e. the quarter (bearing No. B-609, Block-1, Yamuna Vihar, Jamnipali, Distt Korba) situated in the township of N.T.P.C/ K.S.T.P.S., which is allotted to the petitioner by his employer, as per the service terms, and for which- petitioner paying rent toll today.
After ejecting from his own residence, petitioner requested several times to his employer - in writing to get the residence vacated from the unauthorized occupation of respondent But no reply yet been received.
Petitioner request respondent to vacate the residence but she did not listen.
Respondent burnt herself and tried to blackmail the petitioner. In his application dated 5.12.94 (Annex P-4) petitioner expressed his anxiety that the petitioner may put into trouble due to the reckless act of the respondent who turned hostile and may commit any offence at anytime.
Even in the investigation report of the police official; dated 30.1.95, this fact reflected. It is also come out from the same report, that, the respondent unwilling to give any household items - even the clothes of the petitioner, to him.
All the above acts and conducts of respondent treated the petitioner with cruelty.
All these ‘treatment with cruelty’ simultaneously a cause of ‘desertation’ by respondent to the petitioner.
The photocopy to the request for investigation dated 24.1.95 annexed as annexure P-6. The photocopy of the report, after investigation, dated 30.1.95 annexed as annexure P-7.
The photocopy of the application and affidavit, in support of annexure P-6 and P-7 are annexed as annexure P-8.
10. Respondent created such an atmosphere - inside and outside the residence, and polluted the social environment in such a manner, that the petitioner compelled to leave his own residence, better to say ejected from his own residence on January, 1995.
Mental desertation took place after exposing the fraud of respondent. All the above treatment with cruelty of respondent throw petitioner – into a total and complete desertation since January, 1995. This is liable for action under Sec. 13(1) (ib) of the Hindu Marriage Act 1955.
11. Respondent’s written statement dated 6.11.1995, which submitted in the case no. 19-A/93 runs thus:-
(A) Point no 6:
Quote
The behavior of the petitioner to respondent was inhumane and cruel at all times, for which, no issue was born by petitioner to respondent.
Unquote
(B) Point no 8:
Quote
After marriage, petitioner’s behavior with respondent was cruel and inhumane. Unquote
(C) point no 13:
Quote
By a continuous cruel behavior upon respondent, petitioner demanded her shtridhan; self earned income, and landed property and petitioner continuously threatened and tortured respondent financially mentally & physically.
Unquote
(D) Point no 14:
Quote
Petitioner took an ugly attempt and tried to destroy the social and family image of respondent. Unquote.
Photocopy of the written statement dated 6.11.1995 annexed as annexure P-9.
12. From the point no. 6 of the written statement, it is clear that respondent strongly believe and advocated that the petitioner is impotent and the cause of her issueless ness.
Respondent expressed the similar communication to her mother-in-law on November, 1993.
It is another matter that whether a person is impotent or not in reality, but throwing such type of communication orally to petitioner’s mother in front of petitioner and charging the same in her written statement is completely another thing. It is an intentional treatment with cruelty by respondent to the petitioner and liable for action under section 13(1) (ia) under the Hindu Marriage Act, 1995.
13. In various, stages different places and written statement, the respondent abused and condemned petitioner’s religion i.e. Islam.
In her written statement (Annex. P-9) respondent wrote that, petitioner changed his religion, with an intention to defame and destroy the good social and family images of respondent.
Respondent wrote several letters to her mother-in-law that people abusing and condemning petitioner as he embraces Islam. But petitioner found it untrue.
It is known to the respondent that the petitioner changed his religion from Hinduism to Islamic faith.
She might not have enough respect to the Islam. But, she could maintain some short of decency, a little respect to petitioner’s religion, for the sake of petitioner.
But instead of that, respondent charged in her written statement that the petitioner Changed his religion to destroy and defame the good images of respondent and her family.
Respondent did not show proper respect to the religion of the petitioner. She showed her disrespect to the petitioner’s religion. This treatment of respondent to the petitioner is a treatment with mental cruelty of serious nature and liable for action under Sec. 13(1(ia) of the Hindu Marriage Act, 1995.
14. Respondent believe that – the petitioner is impotent and – by changing his religion he tried an ugly attempt to defame and destroy the good reputation of respondent and her family; and –the petitioner treated respondent with cruelty.She complained it several times in different places and occasions and even in her written statement also. She could easily pray for divorce, or judicial separation, or restitution of conjugal rights, on her own grounds, as the matter canalized under the Hindu Marriage Act, 1955.
But respondent neither praying for divorce on her own grounds, nor she co-operated with the petitioner to obtain divorce, nor she kept a room for re-union.
The intention is very clear. Respondent aiming to encroach the person of the petitioner.
It is an act, equal to the denial of the personal liberty of the petitioner under art.21 of The Constitution of India. It is an attempt to deprive the petitioner from Human rights also. This is a treatment with cruelty intentionally done by respondent to the petitioner of severe nature and liable for action under the Hindu Marriage Act, 1955.
15. Petitioner is an asthmatic patient. While he was living together with respondent he frequently fell into asthmatic trouble. Before marriage petitioner was not so ill and after leaving company of the respondent, petitioner feels quite healthy in this respect. Respondent’s treatment with cruelty, throw petitioner into constant mental strain, i.e. worries, anxieties and mental pressure over the petitioner. As a result petitioner attacked by Asthma so frequently.
16. On 12.10.99, petitioner’s employer Mr.A.K. Pashine, Senior Manager (EDP) on behalf of petitioner’s employer ask clarification serving an explanation call against petitioner vide letter ref. KS EDP:99/487, dated 12.10.1999 along with another two letters as enclosures, written by respondent’s brother Mr. A.K. Dasgupta, dated 5.2.99 and by respondent dated 20.9.99.Photocopy of the letter of petitioner’s employer, dated 12.10.99 annexed as annexure P-10.
Photocopy of the letter of Mr. A.K. Dasgupta respondent’s brother dated 5.2.99 annexed as annexure P-11.
Photocopy of the letter of respondent dated 20.9.99, annexed as annexure P-12.
17. On behalf of respondent the brother of respondent lodged some false complaints ( Anx P-11) to the petitioner’s employer addressing to the G.M., K.S.T.P.S./N.T.P.C. Distt Korba and copy to
(i) The Home Minister, Govt. of Madhya Pradesh
(ii) Minister – Incharge District of Korba, for information and necessary action.
These are quoted below:-
A) Quote The petitioner not only continuously cheating/torture but also demand money for the sake of conversion to Islam. Unquote
B) Quote Though Shri Arup Kumar Gupta is married still then he married Smt.Sunita Halder, wife of S.K.Roy. Unquote
C) Quote Smt. Halder is Government Employee and wife of another person. Unquote
The reply of the petitioner is as below:-
The first complaint is false, petitioner never does any thing like cheating or torture to respondent petitioner already converted into Islamic faith. No money is required for accepting Islam. Question of belief only is there. This complaint bears no clear intelligible meaning also.
The second and third complaints are also false. Neither petitioner married Smt. Halder, nor Smt. Halder is wife of another person.
Brother of respondent demanded the following:-
D)Quote This activity of Shri Arup Kumar Gupta [e.no.- 25268] is illegal, illegal & criminal; therefore I demand an appropriate penal action, him from you. Unquote
E) Quote Please let me know the appropriate action taken by you against Shri Arup Kumar Gupta. Unquote
F) Quote Please keep it mind, that, if you do not take appropriate penal action against such character less employee Arup Kumar and due to your negligence, if my younger sister compiled to take any serious steps or take steps to commit suicide, or if she would be the victim of any physical assaults, by the gonads of Arup Kumar, then the total responsibilities will be yours Unquote
The demands are vague and the complaints are false. Petitioner never does any illegal or penal offence for which respondent is eligible to complaint.
Respondent’s brother lodged these false complaints and vague demands with a threatening of committing suicide by respondent indirectly.
The purpose of such indirect threatening of committing suicide is to create undue pressure over the petitioner’s employer. The intention is to compel petitioner’s employer, to take action against petitioner, by which petitioner loose his service, on the basis of respondent false baseless charges, this is an intentional treatment to lowering down petitioner in the estimation of his employer and an attempt to snatch the job of petitioner by hook or crock. This is a treatment with mental cruelty by respondent to petitioner and liable for action under section 13(1) (ia) of the Hindu Marriage Act 1955.
18. Respondent wrote a letter (Annex P-12) dated 20.9.99 complaining a series of false complaints address to:-
(i) Smt Bose, President, Maitri Mahila Smaiti, N.T.P.C Jamnipali. Maitri Mahila Samiti is a ladies club of N.T.P.C. employees and receive financial aid from the fund of M/S Korba Super Thermal Power Station, and copy to
(ii) General Manager
(iii)Head of personnel deptt; of M/s Korba Super Thermal Power Station- The employer of the petitioner and copy to:-
i) Chairman-cum-Managing Director
ii) Director (personnel)
Of M/s National Thermal Power Corporation, New Delhi, which is the corporate centre and head office of M/S korba Super Thermal Power Station.
19. By making false complaints and an indirect threatening of committing suicide by respondent She compel petitioner’s employer to initiate an explanation call against petitioner.
20. The complains and demands lodged by respondent vide her letter (Annex. P-12) are given below.
Complaints:
Quote
A) After marriage, the behaviors of my husband to me were financial & physical exploitation.
B) He never brought his salary or any other items got from N.T.P.C. to home, and where he spent all these items, are not known to me.
C) If I ask he behaved unpleasantly.
D) On the contrary he spent my money for domestic purposes.
E) He kept an woman health worker, Sunita Haldar as wife at Bankimongra.
F) According to my husband, as he says, he has an illegal issue.
G) Smt.Sunita Haldar is wife of another person.
H) A case was registered by Korba police under sec 394 of I.P.C. and he is under trial.
I) My husband tried to obtain divorce by a drama of conversion to Islam.
J) Items, gifts & LTC facilitates offered by the NTPC management to my husband Arup Kumar Gupta, never reached to home. I do not know where he spent all these things.
K) He draw big amounts of loan without my knowledge and misused it.
L) He took house building advance but not building the house.
Unquote.
Demands:-
Quote
M) These acts of my husband are liable for serious action against him by NTPC management. He should be penalized for such acts.
N) Therefore, NTPC management should take penal action against my husband’s such illegal acts, which is not yet done. These are grave and an evidence of insensitivity to woman torture.
O) Therefore, I request that he should not be sanctioned any type of loan without my consent and knowledge.
P) Whatever the items, he entitled, from the NTPC management, may please given to me, instead of him.
Q) I demand action against such conduct of Shri Arup Kumar Gupta.
Unquote
21. The reply of the petitioner are as below:-
A) Totally a false complaint. As a matter of fact, respondent started her matrimonial life with frauding, while it was exposed to the petitioner, the relationship between petitioner and respondent detoriated and respondent started treatment with cruelty to the petitioner with intention to encroach the person of the petitioner and compel him to carry the undesired matrimonial life. She exploited petitioner mentally, physically and financially so long petitioner were attached with her.
B) Firstly, it is not a compulsion, to bring the materials to home or handover it to wife. Secondly, respondent enjoyed all facilities and materials so long petitioner was attached with her. Thirdly, it is one’s personal liberty, to decide where he will spend his earnings. Here, it is to be noted that the respondent never gave single paisa from her own earnings to petitioner up till they were living together.
C) It is wrong interpretation. As a matter of fact, respondent trying to enter into a zone, where she not allowed to move.
D) Totally a false statement, respondent’s mode of talking creates an impression that petitioner living with respondent till now. But petitioner compelled to leave his own quarter since January, 1995, due to the treatment with cruelty by respondent to petitioner.
E) Smt. Halder is not wife of petitioner. She is girl friend of the petitioner.
F) Petitioner has no illegal child. He has a female baby who is the blessings of almighty to the petitioner.
G) She was.
H) Petitioner not aware of any such case. Once two police officials met petitioner and took statement of him. They told that, they enquiry against the complain of respondent and they have court’s order. Petitioner wants to see the document (paper). But they did not show it. The matter is a “got up case” fabricated by respondent In one side, respondent herself is the complainer of false allegations to the police and in another side shall gave a statement to N.T.P.C., management that police registered a case against petitioner.
I) It is true that, petitioner converted herself into Islamic faith. It is also true that, petitioner appeal for divorce. But these were not a drama. It is shameful and sorrowful that respondent hate the petitioner’s religion i.e. Islam.
J) Whatever petitioner gets from the employment of K.S.T.P.S. is the earnings and personal property of petitioner. Petitioner never claims the property or salary of the respondent.
K) No need to inform the respondent about the status of petitioner, considering the relation presently exists between the parties.
L) Totally a false statement.
Answer of petitioner regarding the demand of respondent is as below:-
M) As the statements are false, so the claims are illegal.
N) N.T.P.C., management can not take any action against false charges. Here it is to be specifically noted that respondent started her matrimonial life, with fraud and continue it by a series of treatment with cruelty. Her compliment over NTPC management for insensitivity to woman torture is itself a question mark over her past treatment to petitioner.
O) Respondent trying to handle employer’s discretionary power regarding sanction of loan to the petitioner by blackmailing the employer with indirect threat to commit suicide.
P) It is also discretionary power of management.
Q) N.T.P.C. management can not take any action against petitioner on the basis of false complaints lodged by his fraud and cruel wife.
22. The letter of the respondent (Annex. P-12), which addressed to the President, Maitri Mahila Samiti is also in question. Being an educated (respondent is M.A., B.Ed) and responsible person (respondent is teacher by profession) know well that Maitri Mahila Samiti is a ladies club and none of the complaints and claims can be attended or fulfilled by this club. Instead of appealing appropriate authority, respondent address to the club. By addressing president of the club, respondent addresses all members of the club, who are general public in this regard. Thus addressing a general public, respondent submitted the false charges and vague claims before them with full awareness that they have nothing to do with these matters. It is crystal clear that, respondent keeps an enmity with petitioner. She wrote this letter, addressed to general public of N.T.P.C. family, with an intention to insult and lowering down the image of the petitioner among the general public of N.T.P.C. family. This created a deep hurt with mental pain over the mind of petitioner. This is an intentional mental cruelty by respondent to petitioner and liable for action under sec. 13(1) (ia) of the Hindu Marriage Act, 1955.
23. Respondent sent the copy of the letter annex. P-12 to the employer of petitioner and several other superior authorities. They are:-
(i) General, Manager;
(ii) Head of personnel deptt. Of M/S K.S.T.P.S of Korba, M.P. a project under M/s National Thermal Power corporation, New Delhi.
And
(iii) CMD (iv) Director (Personnel); of M/s National Thermal Power Corporation, New Delhi.
All these complain are false. Some of these complaints are of very serious nature, These are:-
(i) Korba police lodged a case against petitioner under I.P.C.
(ii) Petitioner withdraw House building loan but not made any house.
If any of these complaints be true, then petitioner will loose his job. Respondent lodged these false complaints to the employer of petitioner with full awareness that these complaints are false, scandalous malicious, baseless and disproved. Still then respondent spread all these complaints along with some other complaints, to defame the petitioner.
Respondent doing this propagandas in a geoblic style with believe in goeablic philosophy that, if a lie speaks hundred times from several corners then it will be believed as a true.
The intention is, to humiliate the petitioner; to bring down the employee petitioner in the estimation of his employer, to ruin, to destroy the career and promotional opportunities of the petitioner and if respondent’s luck favor, then bring down petitioner in a jobless position.
This letter put petitioner into a great mental agony. Because, if respondent gets succeed by her goeablic propaganda, then some of the people started to believing that - when such type of complaints coming several times from several comers then, some of the complaints might be true. Though all the complaints are false and unproven.
The unjustifiable remarks and demands of respondent to petitioner’s superior will potentially damage the career of petitioner by lowering down him to the eyes of his superiors and several other authorities.
Respondent not only wrote these false and scandalous allegations to the employer of the petitioner. She wrote the same to several authorities like CMD & Dir. (Personnel) of M/s N.T.P.C.,
Respondent’s false defamatory, scandalous malicious and unproved allegation to employer and several other authorities, defame the petitioner lowering down the petitioner, in their estimation and ruin the future scope in service. These false charges put petitioner into a great mental agony. Respondent is causing mental torture by filing false complaints against petitioner.
All these complaints forwarded with a indirect threatening of committing suicide by respondent and keeping the employer of petitioner liable for it, vide her brother’s letter, Annex. P-11. Petitioner prayed for the pointed attention of the learned court, to this paragraph of Annex. P-11.
Getting blackmailed by this letter the employer of petitioner initiated an explanation call (Annex. P-10) against petitioner.
Employer of petitioner used to ask for explanation on these false complaints, causing mental agony and fear of getting unwanted remarks by higher official of the management, who appears to be more sympathetic (biased) to respondent.
This act and conduct of respondent is a treatment with cruelty of very serious nature and liable for action under Sec. 13(1) (ia) of the Hindu Marriage Act 1955.
24. Respondent wrote in her letter that “according to petitioner, he has an illegal child”. The nature of coupling or the birth of a child within or without wedlock does not bear the legitimacy or illegitimacy of the child. Where binding between a couple is in question - it may be legitimate or illegitimate. But the birth of a child - can not be, and should not be stamped as legitimate or illegitimate one, because of its parent’s nature of coupling. Neither the nature nor the Almighty marked a child as legitimate or illegitimate one. Above all, the child is not at all responsible for its own birth. Therefore, petitioner feels that, due to the nature of coupling of the parents nobody has the right to express it in this manner i.e. by raising the question of legitimacy or illegitimacy of the child. It is against the basic human values also. Every child of India today, is the citizen of India, tomorrow. They are having equal rights. There is no justification to lowering down to a particular child due to the parent’s nature of coupling. This may be the cause of growing ‘inferiority complex” among the “tender infant mind” and a “social and psychological barrier” to its natural development of the child. The child may be deprived from “equal treatment”, from her various spheres of movement in schools, colleges among the friend circles and their parents.
Spreading and campaigning in favor of such attitude in various levels, where her parents move, may be the cause of dangerous harm to the infant baby. It is alarming also, for taking a right decision, to set the whole thing in a right manner, within the limited available scope.
The respondent understands well that the petitioner loves his infant female baby. She is the only issue of him and it is his softest corner also. Still then, she hits the girl child by raising the point of legitimacy with an intention to hit the parents of the child. It is an intentional hitting, which hurts the tender feeling of the petitioner, as well as a cause of great harm to the infant baby of the petitioner.
While the respondent trying to get the sympathy and shelter under the popular slogan of “woman torture”’ simultaneously, she herself is active, to snatch the butter and bread of another woman- who is the mother of a female infant baby, and the service of the father, of that female child The intention is to destroy the mother and her female infant baby.
It is a worst type of mental cruelty of shrude and crude nature by respondent to petitioner. This act and conduct of the respondent is liable for action under Sect. 13(1) (ia) of the Hindu Marriage Act.
25. Once upon a time, petitioner had matrimonial relationship with respondent. In one hand respondent has no conjugal relationship with petitioner- since 9.11.93 and onwards, on the other hand respondent never pray for restitution of conjugal rights, under Sec 9 of the Hindu Marriage Act, 1955, which means respondent neither aggrieved nor interested to restitute the conjugal rights and relationship.
On the contrary, respondent act and conduct to the petitioner is a series of treatment with cruelty, which already stated above.
Matrimonial relationship based on mutual love, affection, respect, well understanding and some common goals, where, these are not available in a particular relationship, and then it is not a matrimonial relationship. Then it reaches into existence in paper only. It is not a desirable situation. If it is not consummate in it’s proper form then it is better, as well as healthier to bring to a good end.
Under such circumstances, it is much more logical; to conclude that, the respondent is also interested for dissolution of marriage as there is no room for re-union. Therefore, matrimonial tie between the petitioner and the respondent may dissolve, taking into granted that, the respondent also not willing to continue the marriage and consented for the dissolution of marriage in the light of the provision of divorce by mutual consent under sec. 13-B of the Hindu Marriage Act, 1955.
26. Petitioner driven away by respondent from his official residence of N.T.P.C. Township and loosing a lot of money every month, and due to that petitioner passing through a very hand inconvenient life. Respondent’s act and conduct purely responsible for it. Respondent is well aware about the hardship and inconvenience of petitioner. She is well aware that the quarter is allotted to petitioner as per his service terms and he is bearing the rent till today. Till then she occupied and captured the N.T.P.C. provided residence of petitioner. It is very clear from this particular point that “who is tortured by whom. Respondent’s intention is to exploit the petitioner in the name of marriage. Therefore such marriage should be dissolved to protect the interest of the petitioner, who is legal occupant of the quarter and unable to live there due to the presence of respondent and her brother’s family. It can not be allowed to respondent to eat the interest of the petitioner.
This act and conduct of respondent is a treatment with cruelty by respondent to petitioner of a serious nature and liable for action under Sec. 13(1) (ia) of The Hindu Marriage Act, 1995.
27. Deleted by order of Trial court.
28. While the fraud of respondent was exposed and she was requested to leave petitioner in a gentle manner, since then the respondent’s intention was to destroy the petitioner. To grab petitioner’s money and other properties in the name of marriage.
i. Respondent abused petitioner in front of his mother by false allegations of impotency.
ii. Snatch IVP & other valuable securities.
iii. Make a drama by burning herself.
iv. Capture petitioner’s residence and ejecting petitioner out from his office accommodation.
v. Throw petitioner into desertation.
vi. Disrespect petitioner’s religion Islam.
vii. Tried to encroach the personal liberty.
viii. Made false defamatory complaints without any proof.
ix. Conspired to ‘damage the carrier and make petitioner Jobless’ by this false defamatory allegation without proof.
x. Throw these false defamatory complains to superior officials where petitioner has no reach.
xi. Made false defamatory allegations to general public without proof.
xii. Hited the girl child of petitioner publicly.
Respondent’s mental torture and cruelty detoriated the matrimonial relationship day by day. It is impossible for petitioner to live together without mental agony, torture and distress. This atmosphere created by, respondent and her family, in a slow poisoning manner. Now it is so worst that no reasonable person can live together with her, Petitioner feels suffocation there. There is no question of further improvement of it. Under such atmosphere, forcible maintenance of marital relationship, only destroy the mental peace and financial loss to the petitioner. It will be a liberty to respondent to eat, the interest of petitioner and his girl child,- if such matrimonial relationship allows to continue.
Forcible maintenance of such peculiar marital relationship is tyranny and matrimonial home can not be founded of grounded on force. Forcible maintenance of marital relationship is slavery by one party to the other.
A person marries to have a sympathetic and understanding co-partner, with whom joys and sorrows of the life can be shared. The sheet anchored of a matrimonial home is their love, amity, sympathy and understanding and not any marriage ritual or certificate. No spouse would ever withdraw from the society of the other unless those are lost and once those are lost, the so called matrimonial home becomes a mere hollow façade and living together becomes and “impossible”.
The (i) ill treatment and (ii) resultant apprehension of danger by the act and conduct of respondent can not be counted as a small or negligible thing.
All those matters came to such a pitch of persistence and intensity, that the maintenance of matrimonial relationship is no longer possible. The above act and conduct is such type that petitioner can not reasonably be expected to live with the respondent. All the acts and conducts tends to destroy the legitimate end and objects of matrimony. It attacks the sense of personal safety, and mental happiness and reputation also.
Petitioner is in service. It is his business and profession it requires good reputation to upraise the carrier. Respondent has enmity with petitioner. Her intention is to defame and destroy petitioner’s goodwill, and reputation. With that intention, she wrote to petitioner’s employer, superiors and general public, the false allegations and claims illegal demands. If respondent is really in needs of some remedial measure, she could come to court with her petition, instead of that, she move in such an area where certainly she can not get any remedial measure, but is able to bring down the petitioner in the estimation of his employer, which effects adversely on the carrier and promotional opportunities. The intention is crystal clear. The intention is not to get any matrimonial remedy or relief but lowering downs the petitioner in dignity.
By making false complains, unjustified demands and ugly remarks to the superiors of employee petitioner and to general public, respondent damaged not only the professional carrier but also defame and destroy the image, the social status of petitioner, which amounts to a treatment with cruelty by respondent to petitioner beyond any doubt and liable for penal action under Sec 13(1) (ia) of the Hindu Marriage Act,1955.
29. Respondent deserted petitioner more than five years and no restitution of conjugal rights has taken place during this period. Decree of divorce may please be granted on this ground.
30. That the petition is not made in collusion with the respondent.
31. Regarding age fraud by respondent, this ground was not taken previously and kept secret so far, considering respondent’s future, her social and professional status etc., but when respondent did not care the tender feelings of petitioner regarding her girl child, and aim the child with an intention to hit the petitioner, then petitioner compel to break the silence regarding the age frauding by respondent.
Regarding the ground abuse the petitioner by the word “Napunsak”. Petitioner felt shame to disclose it previously.
All other grounds of cruelty and desertation informed time to time, during the case 19-a/93 was pending. Regarding the grounds - false complaints made by respondent and her brother – the photocopy of the letter received only on 12.10.99. Considering the above points, delay may kindly be excused and grant relief by decree of divorce.
32. The petitioner and respondent were last resided together at the accommodation allotted to the petitioner at Jamnipali township of M/S K.S.T.P.S. Jamnipali, Tehsil Katghora, Distt. Korba M.P. within the jurisdiction of this court.
33. Prescribed court fee affixed with the petition.
34. It is prayed that, a decree for divorce be passed considering the above mentioned grounds, in the interest of justice.
Dated 24.1.2000 (Petitioner)
Bilaspur, M.P.
IN THE COURT OF THE VTH ADDITIONAL DISTRICT JUDGE TO THE COURT OF DISTRICT JUDGE,
BILASPUR M.P
ARUP KUMAR GUPTA ALIAS ANWAR, AGED 47 YEARS
S/O LATE S.K.GUPTA, By Profession –Service NTPC.
ADDRESS; WIRELESS OPERATOR, K.S.T.P.S., N.T.P.C.
P.O. JAMNIPALI DISTT. KORBA, M.P. PIN 495450 … …. PETITIONER
VERSUS
SMT RAMA DASGUPTA AGED ABOUT 50 YEARS.
D/O LATE P.K.DASGUPTA By Profession Teacher, Govt. School Address B-609, Block – I, Yamuna Vihar P.O. Jamnipali, Distt. Korba, M.P.Pin 495450
….. … RESPONDENT
Petition under Sec 12(1)(c), 13 (1)(ia) & (ib) of The Hindu Marriage Act, 1955
The aforesaid petitioner begs to submit as under:-
Most respectfully showeth that:-
1. The petitioner and respondent got married on 8.5.1988 at Raigarh, Distt. Raigarh M.P. according to custom prevailing in Hindu Baidya Community of Bengal.
2. The parties were last resided together at the quarter allotted to petitioner by his employer, bearing the number B-609, Block-1, Yamuna Vihar, P.O. Jamnipali Distt. Korba M.P.
3. The parties resided together till the end of January. 1955. After arising of serious consequences, the petitioner forced by the respondent to vacate the quarter. Since then, respondent is in forceful possession of the quarter till today; though the said official accommodation is legally belong to the petitioner.
4. No issue was born out of this wedlock.
5. That respondent started her matrimonial life in a fraudulent manner. The marriage was a negotiated one. At the time of marriage negotiation respondent’s brother and sister in law (brother’s wife) wrote a Letter, where they communicate that, the age of the bride (respondent) was 32 years.
The letter bearing this information written in Bengali, dated 1.12.87. But, the real date of birth of the respondent is 20.12.1950 as per her office records. Accordingly, as on 1.12.87, her actual age was 36 years 11 months 12 days say about 37 years.
According to Bengali Baidya Custom, a male do not marry a female older than him. As the party, on behalf of respondent gave false information to the petitioner, therefore the consent was obtained by fraud and attracts the provision of Sec. 12(1(c) of the Hindu Marriage Act, 1955.
Petitioner kept it secret so far considering respondent future, as well as, her well educational background, respectable professions and the social environment, where she and her brother’s family living with an expectation that the matter will amicably be solved in due course. Petitioner is an introvert person of soft nature. Petitioner continuously protested and objected to the respondent for her such fraudulent behavior and showed his unwillingness to continue such a shameful married life, since the fraud was discovered.
The fraud was discovered while respondent came with her office records for the purpose of joining the government school, Jamnipali, where she presently posted. Before marriage, the petitioner and the respondent did not know one other. At the time of marriage negotiation, the petitioner was an innocent person to the respondent and her family. It was expectation, that a person like respondent, who is well educated and in a respectable profession can not communicated a false information, very particularly where marriage is concerned. If the exact age of the respondent communicated to the petitioner, then the petitioner might not have married the respondent. This was known to the respondent and her family, and for that reason, they communicated such false statement.
This act of fraudulent behavior by the respondent to the petitioner throw him into a mental distress and dissertation, which is a treatment with cruelty, as the petitioner was absolutely innocent at that very particular period.
Therefore, again it attracts the provisions of Sec 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955.
After discovering the fraud, though both the parties were living together under the same roof, but petitioner felt alone and passes through a very critical position. Neither had he accepted and welcome the newly married respondent nor he is able to create such a position, by which, the people of surroundings, can asses the problem between the parties. Petitioner primarily requested and latter on creates pressure upon the respondent, her brother and sister-in-law for divorce. But they did not bother it, even to listen it. According to his nature, petitioner’s protest was soft but rigid.
The fraudulent behavior not only constitutes the consent obtained by fraud, but also constitutes a treatment of mental cruelty and mental dissertation.
If the respondent withdraw herself from the marriage admitting the fraudulent behavior on her part, which is an absolute truth - then it did not constitute a mental cruelty. But, when the fraudulent behavior was exposed, she forcedly tried to deny it and imposed over the petitioner - an unwanted, undesirable, matrimonial life.
This is a treatment with cruelty by respondent to the petitioner. This cruel treatment of the respondent constitutes mental cruelty and mental dissertation which converts into physical dissertation also at a latter stage.
Photocopy of the letter dated 1.12.87 bearing information about the age of respondent; English translation of Bengali letter dated 1.12.87. & Photocopy of the age proof as per office record of respondent is annexed as Annexure P-1.
6. Whenever petitioner’s parents visited petitioner at Jamipali, the respondent ill-treated them. Each and every time they experienced it.
7. In October, 1993, petitioner’s mother visited Jamnipali. In front of her, respondent told the petitioner ‘Napunsak’ (impotent). She also charged that due to petitioner’s inability. Respondent depriving from being a mother. It is a treatment with cruelty by respondent to the petitioner and liable for action under Sec 13(1)(ia) of The Hindu Marriage Act 1955.
8. Petitioner filed a case for divorce in the court of 4th A.D.J., District Court of Bilaspur, bearing no. 19-A/03, dated 9.11.93.
The copy of the petition dated 9.11.93 annexed as Annexure P-2.
The ground was the change of religion by the petitioner from Hinduism to Islam. The Hon’ble High court of Madhya Pradesh rejected the ground on 27.8.96 - against the civil revision no. 1924 of 1995. The date of Judgment order is 27.8.96.
The copy of the judgment order of M.P. High Court, dated 27.8.1996, annexed as Annexure P-3.
9. After exposing the fraudulent behavior of respondent she started treating the petitioner with cruelty. After the divorce petition filed, respondent done a series of treatment with cruelty to the petitioner. All these were duly reported before the Court of IV A.D.J. of the District Court of Bilaspur, during the proceeding of the case no. 19-A/93. These are as below:-
A) In January /Feb 1994, respondent taken away all Indira Vikas Patras and other valuable securities - which was hard earned income of the petitioner and gold ornaments given by the parents and relatives of the petitioner. Petitioner prayed for its return by application dated 30.6.94 and 5.12.94. This act and conduct of respondent treated the petitioner with cruelty.
B) Petitioner felt that it is impossible to live with respondent due to her treatment with cruelty. Respondent threatened the petitioner of severe consequences until and unless he withdraws the divorce petition. Respondent harassed, tortured and tried to blackmail the petitioner. She also took the help of communal elements. Therefore, petitioner prayed before the court that - the respondent be directed to live separately in the interest of justice, vide his application dated 5.12.94.
The application dated 5.12.94 annexed as Annexed P-4.
C) Petitioner’s brother-in-law, Mr. Anupom Kumar Dasgupta, threatened the petitioner on 28.11.94. It is reported to P.S. Darri, Korba. Photocopy of the application dated 28.12.94 annexed as annexure P-5.
D) On the early morning of 24.1.95, respondent burnt herself by fire. Petitioner reported the matter to the P.S Darri, Distt Korba Vide letter dated 24.1.95 for enquiry. Petitioner felt it - as a conspiracy against him, and strong insecurity - to live with respondent under the same roof. He compelled to leave the residence in a single wear i.e. in one pant and one shirt, which he wearied at that time.
Some time later, petitioner want to his residence to collect some clothes and other essential household items. But the respondent did not allow it. As a result of that, petitioner compelled to leave the residence permanently. Since then, petitioner staying out - from his own residence i.e. the quarter (bearing No. B-609, Block-1, Yamuna Vihar, Jamnipali, Distt Korba) situated in the township of N.T.P.C/ K.S.T.P.S., which is allotted to the petitioner by his employer, as per the service terms, and for which- petitioner paying rent toll today.
After ejecting from his own residence, petitioner requested several times to his employer - in writing to get the residence vacated from the unauthorized occupation of respondent But no reply yet been received.
Petitioner request respondent to vacate the residence but she did not listen.
Respondent burnt herself and tried to blackmail the petitioner. In his application dated 5.12.94 (Annex P-4) petitioner expressed his anxiety that the petitioner may put into trouble due to the reckless act of the respondent who turned hostile and may commit any offence at anytime.
Even in the investigation report of the police official; dated 30.1.95, this fact reflected. It is also come out from the same report, that, the respondent unwilling to give any household items - even the clothes of the petitioner, to him.
All the above acts and conducts of respondent treated the petitioner with cruelty.
All these ‘treatment with cruelty’ simultaneously a cause of ‘desertation’ by respondent to the petitioner.
The photocopy to the request for investigation dated 24.1.95 annexed as annexure P-6. The photocopy of the report, after investigation, dated 30.1.95 annexed as annexure P-7.
The photocopy of the application and affidavit, in support of annexure P-6 and P-7 are annexed as annexure P-8.
10. Respondent created such an atmosphere - inside and outside the residence, and polluted the social environment in such a manner, that the petitioner compelled to leave his own residence, better to say ejected from his own residence on January, 1995.
Mental desertation took place after exposing the fraud of respondent. All the above treatment with cruelty of respondent throw petitioner – into a total and complete desertation since January, 1995. This is liable for action under Sec. 13(1) (ib) of the Hindu Marriage Act 1955.
11. Respondent’s written statement dated 6.11.1995, which submitted in the case no. 19-A/93 runs thus:-
(A) Point no 6:
Quote
The behavior of the petitioner to respondent was inhumane and cruel at all times, for which, no issue was born by petitioner to respondent.
Unquote
(B) Point no 8:
Quote
After marriage, petitioner’s behavior with respondent was cruel and inhumane. Unquote
(C) point no 13:
Quote
By a continuous cruel behavior upon respondent, petitioner demanded her shtridhan; self earned income, and landed property and petitioner continuously threatened and tortured respondent financially mentally & physically.
Unquote
(D) Point no 14:
Quote
Petitioner took an ugly attempt and tried to destroy the social and family image of respondent. Unquote.
Photocopy of the written statement dated 6.11.1995 annexed as annexure P-9.
12. From the point no. 6 of the written statement, it is clear that respondent strongly believe and advocated that the petitioner is impotent and the cause of her issueless ness.
Respondent expressed the similar communication to her mother-in-law on November, 1993.
It is another matter that whether a person is impotent or not in reality, but throwing such type of communication orally to petitioner’s mother in front of petitioner and charging the same in her written statement is completely another thing. It is an intentional treatment with cruelty by respondent to the petitioner and liable for action under section 13(1) (ia) under the Hindu Marriage Act, 1995.
13. In various, stages different places and written statement, the respondent abused and condemned petitioner’s religion i.e. Islam.
In her written statement (Annex. P-9) respondent wrote that, petitioner changed his religion, with an intention to defame and destroy the good social and family images of respondent.
Respondent wrote several letters to her mother-in-law that people abusing and condemning petitioner as he embraces Islam. But petitioner found it untrue.
It is known to the respondent that the petitioner changed his religion from Hinduism to Islamic faith.
She might not have enough respect to the Islam. But, she could maintain some short of decency, a little respect to petitioner’s religion, for the sake of petitioner.
But instead of that, respondent charged in her written statement that the petitioner Changed his religion to destroy and defame the good images of respondent and her family.
Respondent did not show proper respect to the religion of the petitioner. She showed her disrespect to the petitioner’s religion. This treatment of respondent to the petitioner is a treatment with mental cruelty of serious nature and liable for action under Sec. 13(1(ia) of the Hindu Marriage Act, 1995.
14. Respondent believe that – the petitioner is impotent and – by changing his religion he tried an ugly attempt to defame and destroy the good reputation of respondent and her family; and –the petitioner treated respondent with cruelty.She complained it several times in different places and occasions and even in her written statement also. She could easily pray for divorce, or judicial separation, or restitution of conjugal rights, on her own grounds, as the matter canalized under the Hindu Marriage Act, 1955.
But respondent neither praying for divorce on her own grounds, nor she co-operated with the petitioner to obtain divorce, nor she kept a room for re-union.
The intention is very clear. Respondent aiming to encroach the person of the petitioner.
It is an act, equal to the denial of the personal liberty of the petitioner under art.21 of The Constitution of India. It is an attempt to deprive the petitioner from Human rights also. This is a treatment with cruelty intentionally done by respondent to the petitioner of severe nature and liable for action under the Hindu Marriage Act, 1955.
15. Petitioner is an asthmatic patient. While he was living together with respondent he frequently fell into asthmatic trouble. Before marriage petitioner was not so ill and after leaving company of the respondent, petitioner feels quite healthy in this respect. Respondent’s treatment with cruelty, throw petitioner into constant mental strain, i.e. worries, anxieties and mental pressure over the petitioner. As a result petitioner attacked by Asthma so frequently.
16. On 12.10.99, petitioner’s employer Mr.A.K. Pashine, Senior Manager (EDP) on behalf of petitioner’s employer ask clarification serving an explanation call against petitioner vide letter ref. KS EDP:99/487, dated 12.10.1999 along with another two letters as enclosures, written by respondent’s brother Mr. A.K. Dasgupta, dated 5.2.99 and by respondent dated 20.9.99.Photocopy of the letter of petitioner’s employer, dated 12.10.99 annexed as annexure P-10.
Photocopy of the letter of Mr. A.K. Dasgupta respondent’s brother dated 5.2.99 annexed as annexure P-11.
Photocopy of the letter of respondent dated 20.9.99, annexed as annexure P-12.
17. On behalf of respondent the brother of respondent lodged some false complaints ( Anx P-11) to the petitioner’s employer addressing to the G.M., K.S.T.P.S./N.T.P.C. Distt Korba and copy to
(i) The Home Minister, Govt. of Madhya Pradesh
(ii) Minister – Incharge District of Korba, for information and necessary action.
These are quoted below:-
A) Quote The petitioner not only continuously cheating/torture but also demand money for the sake of conversion to Islam. Unquote
B) Quote Though Shri Arup Kumar Gupta is married still then he married Smt.Sunita Halder, wife of S.K.Roy. Unquote
C) Quote Smt. Halder is Government Employee and wife of another person. Unquote
The reply of the petitioner is as below:-
The first complaint is false, petitioner never does any thing like cheating or torture to respondent petitioner already converted into Islamic faith. No money is required for accepting Islam. Question of belief only is there. This complaint bears no clear intelligible meaning also.
The second and third complaints are also false. Neither petitioner married Smt. Halder, nor Smt. Halder is wife of another person.
Brother of respondent demanded the following:-
D)Quote This activity of Shri Arup Kumar Gupta [e.no.- 25268] is illegal, illegal & criminal; therefore I demand an appropriate penal action, him from you. Unquote
E) Quote Please let me know the appropriate action taken by you against Shri Arup Kumar Gupta. Unquote
F) Quote Please keep it mind, that, if you do not take appropriate penal action against such character less employee Arup Kumar and due to your negligence, if my younger sister compiled to take any serious steps or take steps to commit suicide, or if she would be the victim of any physical assaults, by the gonads of Arup Kumar, then the total responsibilities will be yours Unquote
The demands are vague and the complaints are false. Petitioner never does any illegal or penal offence for which respondent is eligible to complaint.
Respondent’s brother lodged these false complaints and vague demands with a threatening of committing suicide by respondent indirectly.
The purpose of such indirect threatening of committing suicide is to create undue pressure over the petitioner’s employer. The intention is to compel petitioner’s employer, to take action against petitioner, by which petitioner loose his service, on the basis of respondent false baseless charges, this is an intentional treatment to lowering down petitioner in the estimation of his employer and an attempt to snatch the job of petitioner by hook or crock. This is a treatment with mental cruelty by respondent to petitioner and liable for action under section 13(1) (ia) of the Hindu Marriage Act 1955.
18. Respondent wrote a letter (Annex P-12) dated 20.9.99 complaining a series of false complaints address to:-
(i) Smt Bose, President, Maitri Mahila Smaiti, N.T.P.C Jamnipali. Maitri Mahila Samiti is a ladies club of N.T.P.C. employees and receive financial aid from the fund of M/S Korba Super Thermal Power Station, and copy to
(ii) General Manager
(iii)Head of personnel deptt; of M/s Korba Super Thermal Power Station- The employer of the petitioner and copy to:-
i) Chairman-cum-Managing Director
ii) Director (personnel)
Of M/s National Thermal Power Corporation, New Delhi, which is the corporate centre and head office of M/S korba Super Thermal Power Station.
19. By making false complaints and an indirect threatening of committing suicide by respondent She compel petitioner’s employer to initiate an explanation call against petitioner.
20. The complains and demands lodged by respondent vide her letter (Annex. P-12) are given below.
Complaints:
Quote
A) After marriage, the behaviors of my husband to me were financial & physical exploitation.
B) He never brought his salary or any other items got from N.T.P.C. to home, and where he spent all these items, are not known to me.
C) If I ask he behaved unpleasantly.
D) On the contrary he spent my money for domestic purposes.
E) He kept an woman health worker, Sunita Haldar as wife at Bankimongra.
F) According to my husband, as he says, he has an illegal issue.
G) Smt.Sunita Haldar is wife of another person.
H) A case was registered by Korba police under sec 394 of I.P.C. and he is under trial.
I) My husband tried to obtain divorce by a drama of conversion to Islam.
J) Items, gifts & LTC facilitates offered by the NTPC management to my husband Arup Kumar Gupta, never reached to home. I do not know where he spent all these things.
K) He draw big amounts of loan without my knowledge and misused it.
L) He took house building advance but not building the house.
Unquote.
Demands:-
Quote
M) These acts of my husband are liable for serious action against him by NTPC management. He should be penalized for such acts.
N) Therefore, NTPC management should take penal action against my husband’s such illegal acts, which is not yet done. These are grave and an evidence of insensitivity to woman torture.
O) Therefore, I request that he should not be sanctioned any type of loan without my consent and knowledge.
P) Whatever the items, he entitled, from the NTPC management, may please given to me, instead of him.
Q) I demand action against such conduct of Shri Arup Kumar Gupta.
Unquote
21. The reply of the petitioner are as below:-
A) Totally a false complaint. As a matter of fact, respondent started her matrimonial life with frauding, while it was exposed to the petitioner, the relationship between petitioner and respondent detoriated and respondent started treatment with cruelty to the petitioner with intention to encroach the person of the petitioner and compel him to carry the undesired matrimonial life. She exploited petitioner mentally, physically and financially so long petitioner were attached with her.
B) Firstly, it is not a compulsion, to bring the materials to home or handover it to wife. Secondly, respondent enjoyed all facilities and materials so long petitioner was attached with her. Thirdly, it is one’s personal liberty, to decide where he will spend his earnings. Here, it is to be noted that the respondent never gave single paisa from her own earnings to petitioner up till they were living together.
C) It is wrong interpretation. As a matter of fact, respondent trying to enter into a zone, where she not allowed to move.
D) Totally a false statement, respondent’s mode of talking creates an impression that petitioner living with respondent till now. But petitioner compelled to leave his own quarter since January, 1995, due to the treatment with cruelty by respondent to petitioner.
E) Smt. Halder is not wife of petitioner. She is girl friend of the petitioner.
F) Petitioner has no illegal child. He has a female baby who is the blessings of almighty to the petitioner.
G) She was.
H) Petitioner not aware of any such case. Once two police officials met petitioner and took statement of him. They told that, they enquiry against the complain of respondent and they have court’s order. Petitioner wants to see the document (paper). But they did not show it. The matter is a “got up case” fabricated by respondent In one side, respondent herself is the complainer of false allegations to the police and in another side shall gave a statement to N.T.P.C., management that police registered a case against petitioner.
I) It is true that, petitioner converted herself into Islamic faith. It is also true that, petitioner appeal for divorce. But these were not a drama. It is shameful and sorrowful that respondent hate the petitioner’s religion i.e. Islam.
J) Whatever petitioner gets from the employment of K.S.T.P.S. is the earnings and personal property of petitioner. Petitioner never claims the property or salary of the respondent.
K) No need to inform the respondent about the status of petitioner, considering the relation presently exists between the parties.
L) Totally a false statement.
Answer of petitioner regarding the demand of respondent is as below:-
M) As the statements are false, so the claims are illegal.
N) N.T.P.C., management can not take any action against false charges. Here it is to be specifically noted that respondent started her matrimonial life, with fraud and continue it by a series of treatment with cruelty. Her compliment over NTPC management for insensitivity to woman torture is itself a question mark over her past treatment to petitioner.
O) Respondent trying to handle employer’s discretionary power regarding sanction of loan to the petitioner by blackmailing the employer with indirect threat to commit suicide.
P) It is also discretionary power of management.
Q) N.T.P.C. management can not take any action against petitioner on the basis of false complaints lodged by his fraud and cruel wife.
22. The letter of the respondent (Annex. P-12), which addressed to the President, Maitri Mahila Samiti is also in question. Being an educated (respondent is M.A., B.Ed) and responsible person (respondent is teacher by profession) know well that Maitri Mahila Samiti is a ladies club and none of the complaints and claims can be attended or fulfilled by this club. Instead of appealing appropriate authority, respondent address to the club. By addressing president of the club, respondent addresses all members of the club, who are general public in this regard. Thus addressing a general public, respondent submitted the false charges and vague claims before them with full awareness that they have nothing to do with these matters. It is crystal clear that, respondent keeps an enmity with petitioner. She wrote this letter, addressed to general public of N.T.P.C. family, with an intention to insult and lowering down the image of the petitioner among the general public of N.T.P.C. family. This created a deep hurt with mental pain over the mind of petitioner. This is an intentional mental cruelty by respondent to petitioner and liable for action under sec. 13(1) (ia) of the Hindu Marriage Act, 1955.
23. Respondent sent the copy of the letter annex. P-12 to the employer of petitioner and several other superior authorities. They are:-
(i) General, Manager;
(ii) Head of personnel deptt. Of M/S K.S.T.P.S of Korba, M.P. a project under M/s National Thermal Power corporation, New Delhi.
And
(iii) CMD (iv) Director (Personnel); of M/s National Thermal Power Corporation, New Delhi.
All these complain are false. Some of these complaints are of very serious nature, These are:-
(i) Korba police lodged a case against petitioner under I.P.C.
(ii) Petitioner withdraw House building loan but not made any house.
If any of these complaints be true, then petitioner will loose his job. Respondent lodged these false complaints to the employer of petitioner with full awareness that these complaints are false, scandalous malicious, baseless and disproved. Still then respondent spread all these complaints along with some other complaints, to defame the petitioner.
Respondent doing this propagandas in a geoblic style with believe in goeablic philosophy that, if a lie speaks hundred times from several corners then it will be believed as a true.
The intention is, to humiliate the petitioner; to bring down the employee petitioner in the estimation of his employer, to ruin, to destroy the career and promotional opportunities of the petitioner and if respondent’s luck favor, then bring down petitioner in a jobless position.
This letter put petitioner into a great mental agony. Because, if respondent gets succeed by her goeablic propaganda, then some of the people started to believing that - when such type of complaints coming several times from several comers then, some of the complaints might be true. Though all the complaints are false and unproven.
The unjustifiable remarks and demands of respondent to petitioner’s superior will potentially damage the career of petitioner by lowering down him to the eyes of his superiors and several other authorities.
Respondent not only wrote these false and scandalous allegations to the employer of the petitioner. She wrote the same to several authorities like CMD & Dir. (Personnel) of M/s N.T.P.C.,
Respondent’s false defamatory, scandalous malicious and unproved allegation to employer and several other authorities, defame the petitioner lowering down the petitioner, in their estimation and ruin the future scope in service. These false charges put petitioner into a great mental agony. Respondent is causing mental torture by filing false complaints against petitioner.
All these complaints forwarded with a indirect threatening of committing suicide by respondent and keeping the employer of petitioner liable for it, vide her brother’s letter, Annex. P-11. Petitioner prayed for the pointed attention of the learned court, to this paragraph of Annex. P-11.
Getting blackmailed by this letter the employer of petitioner initiated an explanation call (Annex. P-10) against petitioner.
Employer of petitioner used to ask for explanation on these false complaints, causing mental agony and fear of getting unwanted remarks by higher official of the management, who appears to be more sympathetic (biased) to respondent.
This act and conduct of respondent is a treatment with cruelty of very serious nature and liable for action under Sec. 13(1) (ia) of the Hindu Marriage Act 1955.
24. Respondent wrote in her letter that “according to petitioner, he has an illegal child”. The nature of coupling or the birth of a child within or without wedlock does not bear the legitimacy or illegitimacy of the child. Where binding between a couple is in question - it may be legitimate or illegitimate. But the birth of a child - can not be, and should not be stamped as legitimate or illegitimate one, because of its parent’s nature of coupling. Neither the nature nor the Almighty marked a child as legitimate or illegitimate one. Above all, the child is not at all responsible for its own birth. Therefore, petitioner feels that, due to the nature of coupling of the parents nobody has the right to express it in this manner i.e. by raising the question of legitimacy or illegitimacy of the child. It is against the basic human values also. Every child of India today, is the citizen of India, tomorrow. They are having equal rights. There is no justification to lowering down to a particular child due to the parent’s nature of coupling. This may be the cause of growing ‘inferiority complex” among the “tender infant mind” and a “social and psychological barrier” to its natural development of the child. The child may be deprived from “equal treatment”, from her various spheres of movement in schools, colleges among the friend circles and their parents.
Spreading and campaigning in favor of such attitude in various levels, where her parents move, may be the cause of dangerous harm to the infant baby. It is alarming also, for taking a right decision, to set the whole thing in a right manner, within the limited available scope.
The respondent understands well that the petitioner loves his infant female baby. She is the only issue of him and it is his softest corner also. Still then, she hits the girl child by raising the point of legitimacy with an intention to hit the parents of the child. It is an intentional hitting, which hurts the tender feeling of the petitioner, as well as a cause of great harm to the infant baby of the petitioner.
While the respondent trying to get the sympathy and shelter under the popular slogan of “woman torture”’ simultaneously, she herself is active, to snatch the butter and bread of another woman- who is the mother of a female infant baby, and the service of the father, of that female child The intention is to destroy the mother and her female infant baby.
It is a worst type of mental cruelty of shrude and crude nature by respondent to petitioner. This act and conduct of the respondent is liable for action under Sect. 13(1) (ia) of the Hindu Marriage Act.
25. Once upon a time, petitioner had matrimonial relationship with respondent. In one hand respondent has no conjugal relationship with petitioner- since 9.11.93 and onwards, on the other hand respondent never pray for restitution of conjugal rights, under Sec 9 of the Hindu Marriage Act, 1955, which means respondent neither aggrieved nor interested to restitute the conjugal rights and relationship.
On the contrary, respondent act and conduct to the petitioner is a series of treatment with cruelty, which already stated above.
Matrimonial relationship based on mutual love, affection, respect, well understanding and some common goals, where, these are not available in a particular relationship, and then it is not a matrimonial relationship. Then it reaches into existence in paper only. It is not a desirable situation. If it is not consummate in it’s proper form then it is better, as well as healthier to bring to a good end.
Under such circumstances, it is much more logical; to conclude that, the respondent is also interested for dissolution of marriage as there is no room for re-union. Therefore, matrimonial tie between the petitioner and the respondent may dissolve, taking into granted that, the respondent also not willing to continue the marriage and consented for the dissolution of marriage in the light of the provision of divorce by mutual consent under sec. 13-B of the Hindu Marriage Act, 1955.
26. Petitioner driven away by respondent from his official residence of N.T.P.C. Township and loosing a lot of money every month, and due to that petitioner passing through a very hand inconvenient life. Respondent’s act and conduct purely responsible for it. Respondent is well aware about the hardship and inconvenience of petitioner. She is well aware that the quarter is allotted to petitioner as per his service terms and he is bearing the rent till today. Till then she occupied and captured the N.T.P.C. provided residence of petitioner. It is very clear from this particular point that “who is tortured by whom. Respondent’s intention is to exploit the petitioner in the name of marriage. Therefore such marriage should be dissolved to protect the interest of the petitioner, who is legal occupant of the quarter and unable to live there due to the presence of respondent and her brother’s family. It can not be allowed to respondent to eat the interest of the petitioner.
This act and conduct of respondent is a treatment with cruelty by respondent to petitioner of a serious nature and liable for action under Sec. 13(1) (ia) of The Hindu Marriage Act, 1995.
27. Deleted by order of Trial court.
28. While the fraud of respondent was exposed and she was requested to leave petitioner in a gentle manner, since then the respondent’s intention was to destroy the petitioner. To grab petitioner’s money and other properties in the name of marriage.
i. Respondent abused petitioner in front of his mother by false allegations of impotency.
ii. Snatch IVP & other valuable securities.
iii. Make a drama by burning herself.
iv. Capture petitioner’s residence and ejecting petitioner out from his office accommodation.
v. Throw petitioner into desertation.
vi. Disrespect petitioner’s religion Islam.
vii. Tried to encroach the personal liberty.
viii. Made false defamatory complaints without any proof.
ix. Conspired to ‘damage the carrier and make petitioner Jobless’ by this false defamatory allegation without proof.
x. Throw these false defamatory complains to superior officials where petitioner has no reach.
xi. Made false defamatory allegations to general public without proof.
xii. Hited the girl child of petitioner publicly.
Respondent’s mental torture and cruelty detoriated the matrimonial relationship day by day. It is impossible for petitioner to live together without mental agony, torture and distress. This atmosphere created by, respondent and her family, in a slow poisoning manner. Now it is so worst that no reasonable person can live together with her, Petitioner feels suffocation there. There is no question of further improvement of it. Under such atmosphere, forcible maintenance of marital relationship, only destroy the mental peace and financial loss to the petitioner. It will be a liberty to respondent to eat, the interest of petitioner and his girl child,- if such matrimonial relationship allows to continue.
Forcible maintenance of such peculiar marital relationship is tyranny and matrimonial home can not be founded of grounded on force. Forcible maintenance of marital relationship is slavery by one party to the other.
A person marries to have a sympathetic and understanding co-partner, with whom joys and sorrows of the life can be shared. The sheet anchored of a matrimonial home is their love, amity, sympathy and understanding and not any marriage ritual or certificate. No spouse would ever withdraw from the society of the other unless those are lost and once those are lost, the so called matrimonial home becomes a mere hollow façade and living together becomes and “impossible”.
The (i) ill treatment and (ii) resultant apprehension of danger by the act and conduct of respondent can not be counted as a small or negligible thing.
All those matters came to such a pitch of persistence and intensity, that the maintenance of matrimonial relationship is no longer possible. The above act and conduct is such type that petitioner can not reasonably be expected to live with the respondent. All the acts and conducts tends to destroy the legitimate end and objects of matrimony. It attacks the sense of personal safety, and mental happiness and reputation also.
Petitioner is in service. It is his business and profession it requires good reputation to upraise the carrier. Respondent has enmity with petitioner. Her intention is to defame and destroy petitioner’s goodwill, and reputation. With that intention, she wrote to petitioner’s employer, superiors and general public, the false allegations and claims illegal demands. If respondent is really in needs of some remedial measure, she could come to court with her petition, instead of that, she move in such an area where certainly she can not get any remedial measure, but is able to bring down the petitioner in the estimation of his employer, which effects adversely on the carrier and promotional opportunities. The intention is crystal clear. The intention is not to get any matrimonial remedy or relief but lowering downs the petitioner in dignity.
By making false complains, unjustified demands and ugly remarks to the superiors of employee petitioner and to general public, respondent damaged not only the professional carrier but also defame and destroy the image, the social status of petitioner, which amounts to a treatment with cruelty by respondent to petitioner beyond any doubt and liable for penal action under Sec 13(1) (ia) of the Hindu Marriage Act,1955.
29. Respondent deserted petitioner more than five years and no restitution of conjugal rights has taken place during this period. Decree of divorce may please be granted on this ground.
30. That the petition is not made in collusion with the respondent.
31. Regarding age fraud by respondent, this ground was not taken previously and kept secret so far, considering respondent’s future, her social and professional status etc., but when respondent did not care the tender feelings of petitioner regarding her girl child, and aim the child with an intention to hit the petitioner, then petitioner compel to break the silence regarding the age frauding by respondent.
Regarding the ground abuse the petitioner by the word “Napunsak”. Petitioner felt shame to disclose it previously.
All other grounds of cruelty and desertation informed time to time, during the case 19-a/93 was pending. Regarding the grounds - false complaints made by respondent and her brother – the photocopy of the letter received only on 12.10.99. Considering the above points, delay may kindly be excused and grant relief by decree of divorce.
32. The petitioner and respondent were last resided together at the accommodation allotted to the petitioner at Jamnipali township of M/S K.S.T.P.S. Jamnipali, Tehsil Katghora, Distt. Korba M.P. within the jurisdiction of this court.
33. Prescribed court fee affixed with the petition.
34. It is prayed that, a decree for divorce be passed considering the above mentioned grounds, in the interest of justice.
Dated 24.1.2000 (Petitioner)
Bilaspur, M.P.
Wednesday 17 June 2009
TRIAL COURT JUDGEMENT (ANNEXURE P-11)
/ TRUE TRANSLATED COPY /
In the Court of District Judge, Korba (Chhattisgarh)
Presiding justice: R.S. Sharma
Civil Suit No. 37A/2004
Arup Gupta @ Anawar S/o. Late S.K. Gupta, aged about 47 years, Service in N.T.P.C. R/o.Wireless operator K.S.T.P.S
N.T.P.C. Jaminipali, Korba, District Korba.
...Applicant/complainant.
Versus
Smt. Rama Gupta, aged about 50 years, D/o. P.K. Dasgupta
Occ. Teacher (Govt.), R/o. B-609 Yamuna Vihar, Jaminipali, Distt. Korba, Chhattisgarh.
...Non-applicant/Opp.Party.
On behalf of the applicant/complainant – Arup Kumar Gupta
Applicant.
On behalf of non-applicant/respondent – Adv. V.K.Gupta.
JUDGMENT
(Pronounced today on 3rd December, 2004)
1. The applicant has filed this application for passing of the decree of dissolution with non-applicant Smt.Rama Dasgupta under Section 13(1)(a) and 13(1)(b) and for declaring the marriage as null and void under Section 12(1)(c).
2. The admitted fact is this that the marriage between the applicant and non-applicant Rama Dasgupta was solemnized on 8.5.1988 in Raigarh as per Hindu rites and rituals. It is also an admitted fact that after the marriage, applicant and non-applicant Rama Dasgupta were residing in the allotted House No. B 609, Block No.1, Yamuna Vihar, Jaminipali. It is also an admitted fact that, no child was born, in this wedlock of applicant and non-applicant as a result of their conjugal life. It is also an admitted fact that applicant filed an application earlier under Section 13(a) of Hindu Marriage Act, 1955 in the Court of 4th Additional District Judge, Bilaspur and it was registered as Civil Misc.Case No.19-A of 1993 and the application filed by the applicant was rejected by the Hon’ble High Court under Order VII Rule 11 C.P.C.
3. The brief facts of the application of the applicant is like this that the marriage of the applicant was solemnized with non-applicant on 8.5.1988 in Raigarh, thereafter both the parties were residing in the house allotted to the applicant bearing House No.609, Block No.1, Yamuna Vihar, Jaminipali, Korba and both of them have resided together till January 1995. Thereafter a serious dispute started arising between the parties and non-applicant had got the house vacated forcibly from the applicant. No child was born as a result of this wedlock of the applicant and non-applicant. Non-applicant started behaving fraudulently in married life. The brother and sister-in-law of the non-applicant wrote a letter to the applicant and stated that the age of the non-applicant Rama Dasgupta is 32 years whereas actually the date of birth of the non-applicant is 20.12.1950 and non-applicant was elder to the applicant and by concealing this fact the marriage of the non-applicant Rama Dasgupta solemnized with the applicant and by this way the consent of the marriage had been obtained by concealing the fact in fraudulent manner, and the age of the wife cannot be more than the age of the husband in Baisya community of Bengalis, therefore applicant is entitled to get the marriage declared as null and void under Section 12(c) of Hindu Marriage Act, 1955. Non-applicant started behaving in cruel manner with applicant. Non-applicant Rama Dasgupta stated the applicant impotent, in presence of his parents, and which falls under the category of cruelty. Non-applicant behaved in a cruel manner with applicant by tarnishing the prestige of the applicant by making some serious allegations towards the applicant by writing a letter in his office. The non-applicant had earlier filed a reply in respect of the application of the applicant under Section 13(1)(a) of Hindu Marriage Act, 1955 where also the non-applicant had levelled serious allegations against the applicant which falls under the category of mental cruelty. Non-applicant compelled the applicant to leave his allotted house, and live separately. Applicant was compelled to leave the house only in one cloth and when applicant returned to collect his clothes after few days then pressure was puted upon by the non-applicant that he should permanently leave the house. whereas applicant had stated to the non-applicant that house has been allotted to the applicant, therefore she should vacate it, but non-applicant did not pay any attention to it and she was not ready to listen the applicant.
4. Non-applicant had burnt herself by fire and had started blackmailing the applicant and reported it too, to the police. By this way non-applicant regularly tortured the applicant, polluted the atmosphere treated the applicant with cruelty. As the applicant has been compelled to stay separately for more than two years due to the cruel treatment of non-applicant Rama Dasgupta, therefore the applicant is entitled to get the decree of dissolution of marriage under Section 13(1)(b) of Hindu marriage Act, 1955.
5. It is also one of the ground in his petition that, on the basis of the applicant’s being Muslim, non-applicant ignore and neglect her husband due to his religion. Non-applicant wrote a letter to the officer of the applicant Shri A.K. Basile, Sr. Engineer on 12.10.1999 and in there also applicant was humiliated, and the brother of the non-applicant also made a complaint against the applicant before his officer and this act falls under the category of the cruelty. Non-applicant started the cruel behaviour in the married life since beginning, by her fraudulent act and she has been making an effort to put pressure upon the applicant deliberately for living him separately by writing a letter in the office of the applicant which falls under the category of mental cruelty and it is not possible for the applicant and non-applicant to continue the married life and it is not possible for them to live together and non-applicant made an allegation upon the applicant in regard to the valuable property and in this way non-applicant has been behaving in a cruel manner with the applicant and therefore applicant is entitled to live separately due to the cruel behaviour and conduct of non-applicant Rama Dasgupta and he is entitled to get the decree of dissolution of marriage on the ground of cruelty. Therefore, the application filed on behalf of the applicant should be allowed and decree for dissolution of marriage should be passed.
6. Non-applicant Rama Dasgupta has mentioned in her written statement that no cruel behaviour has been done by the non-applicant. Applicant himself left the disputed house and applicant has made false allegation upon the non-applicant and there is no such rule that in Bengali Baisya community, the age of the wife cannot be more than the age of the husband. No false information in regard to the age has been given by the non-applicant nor any kind of fraudulent act has been done against him. Applicant has illicit relation with another woman and due to that reason, the applicant is causing mental, physical and economic loss to the non-applicant Rama Dasgupta and is being deprived from the marital life and relationship. So far as the question of cruelty is concerned, the cruel behaviour is being done by the applicant with the non-applicant. Applicant filed a petition being Civil Suit No.19A/1993 under Section 13 and 12(1) of Hindu marriage Act, 1955 and the Revision Petition No.1924/95 filed by the applicant had been dismissed by the Hon’ble High Court of Madhya Pradesh at Jabalpur on the ground of non-maintainability of the application. Applicant by crossing all the limits of the religion and customs, and despite being married, has established a illicit relation with another woman and wants to live separately from non-applicant by deliberately converting his religion. Applicant has never been stated to be impotent, by the non-applicant. The applicant has filed the case on false grounds and such situation are being created by the applicant by which non-applicant could be instigated to commit suicide and in this way such kind of cruel behaviour is being done by the applicant. Applicant is not entitled to get any kind of relief; therefore his application should be rejected.
7. On the basis of the contentions of the parties, following suit issues have been formulated and their findings have been shown in front of it :-
SUIT ISSUES FINDINGS
(1) Whether non-applicant Rama Not proved
Dasgupta, by played fraud
with the applicant Arup Kumar
that, her age less than Arup
Kumar, got married with him?
(2) Whether non-applicant Rama Not proved
Dasgupta treated applicant
With Cruelty?
(3) Whether non-applicant Rama Not proved
Dasgupta deserted the applicant
for more than two years before
the date of filing the case
without any cogent reason?
(4) Whether the applicant filed It was not petition under Section 12 & 13 disposed of
of Hindu Marriage Act, 1955
earlier before the Court of IVth
Addl.District Judge, Bilaspur which
was rejected and its revision was
rejected by the Hon’ble High Court
on 27.8.96 therefore, whether the
case of the applicant is not
maintainable?
(5) Whether the applicant despite Not proved
being with the non-applicant,
established illicit relationship
with another woman and from
her there is an issue?
(6) Relief and costs ? The application of the
Applicant is rejected.
FINDINGS AND REASONS
SUIT ISSUE NO.1
8. The effort has been made on behalf of the applicant to state this that non-applicant Rama Dasgupta has played a fraud with him by concealing the fact of her age. The age of the non-applicant was more than
the age of the applicant. She was approximately 37 years of age at the time of marriage whereas the age has been stated to be 32 years in the letter sent to the applicant. Non-applicant highly qualified woman and she was in service, therefore applicant married the non-applicant by believing on the facts stated by her and in this way the consent has been obtained by fraud and therefore applicant is entitled to get the marriage declared null and void under Section 12(1)(c) of Hindu Marriage Act, 1955. Contrary to this, the non-applicant has discarded the allegations of the applicant.
9. It has been stated under Section 12(1)(c) that if the consent has been obtained by fraud in regard to the material fact, or in regard to the circumstances, then under such circumstances party can make an application for declaring the marriage null and void.
But now it has to be seen whether actually the facts have been concealed on behalf of the non-applicant in regard to age?
10. Arup Kumar Gupta, (PW-5) has stated in para 1 of his statement that he had given an advertisement for marriage, on behalf of Rama Dasgupta by her elder brother Anup Dasgupta and his wife sent, its
reply. In which the age of Rama Dasgupta has been stated as 32 years, and letter bears the date 1.12.87. But the date of birth mentioned in the Government record of the respondent was 20.12.1950 and his age was 37 years at the time of writing the letter Ext.P-1 and this fact has been concealed and in cross examination also this witness stated that, this is not true that respondent’s brother had not stated the age of the respondent as 32 years to the parents of the applicant. The age of the non-applicant Rama Dasgupta is not more than that of applicant,it is also not stated by non-applicant. This fact has not been refused by Karobi Gupta, PW-1, Meghdeep Gupta, PW-2 that the age of the respondent have been stated to be 32 years at the time of marriage and respondent’s brother Anup Dasgupta stated by writing an inland letter that the age of the respondent is 32 years. It appears from the statement of the witness of the plaintiff that, the age of non-applicant is less than the applicant. But it has to be seen whether any fraudulent behaviour has been done by the non-applicant, in this regard?
11. Arup Kumar Gupta, PW-5, applicant himself, stated in para 3 of his statement that respondent has considered herself to be married only on the basis of the marriage as per the rites and rituals. The cruelty of the respondent had been since beginning. She stated herself as a woman of 32 years whereas she was 37 years old. But Arup Kumar Gupta has admitted in para 8 of his cross-examination that he had seen the respondent by visiting her house. It is true that he had seen the respondent prior to the marriage. He had given the consent for the marriage with this understanding that the respondent to be a girl of 32 years of age. It is clear from the statement of Arup Kumar Gupta that prior to the marriage applicant Arup Kumar Gupta saw non-applicant Rama Dasgupta and thereafter married her. In this way the applicant had the sufficient scope to know about the non-applicant and even thereafter the consent of the marriage was given. Under this circumstances, the cruel behaviour done with the applicant by concealing the facts of age, cannot be accepted.
12. It has been stated in Section 12(2), Part-A, sub-para(1), part(c) that, (1) petition is presented more than one year after the force has been ceased to operate or fraud has been discovered; (2) Petitioner, after the force has been ceased or the fraud exposed, residing with respondent as husband or wife.
13. It is clear from the perusal of part(a) of Sub-para (2) that after the knowledge of the fraudulent facts, application should be filed within a period of one year for getting the marriage declared as null and void.
14. According to the applicant, his marriage has been solemnized with the non-applicant in May 1988 and applicant has stated in para 3 of his petition that the parties have been residing together by the end of January 1995. Arup Kumar Gupta has stated in para 2 of his statement that in October 1993 his mother had come to Jamnipali then respondent had told him impotent and application for divorce had been filed in the year 2000 and in this way it is clear that applicant and non-applicant have resided together as husband and wife from 1988 to 1995 and applicant Arup Kumar Gupta has not expressed in his statement that when he has actually got the information in regard to the age of the non-applicant whereas according to the petition both of them resided together till 1995. Rama Dasgupra, NAW-1 has been cross-examined by the applicant. She has stated in para 2 of her statement that after the marriage, they have been residing together in the same quarter till 1996–1997 as husband and wife and it has been stated in the statement that the marriage had been solemnized at Ramgarh and then they had gone to Kolkata and thereafter she started residing in the house of the applicant at Jamnipali after 15 days after his transfer and this witness has made statement in para 16 of the statement that it is wrong to say that she has played fraud. You know about her age since beginning, the entire document was with you and had gone to Gwalior also for taking out the money.
15. It is clear from the statement of the applicant Arup Kumar Gupta and non-applicant Rama Dasgupta that much prior to the filing of the petition, applicant was having the information with regard to the age of non-applicant Rama Dasgupta. Even thereafter, applicant is keeping non-applicant in the form of his wife and under such circumstances, the application has been filed for declaring the marriage null and void one year after, having the knowledge of the facts of the fraud by the applicant which is not liable to be allowed and undisputedly in view of the provisions of para 12(1)(c) of Hindu Marriage Act, 1955 the application of the applicant is time barred. It has not been proved by the applicant that non-applicant Rama Dasgupta had acted fraudulently in regard to her age and had deceived the applicant. As a result of it, the finding of the suit issue No.1, is given against the applicant in negative manner.
SUIT ISSUE NOS.2, 3 & 5
16. All these three issues are related to each other and therefore they are being disposed of together.
Applicant has filed 24 pages petition in which he has contended in details in regard to the cruelty and has made an effort to tell that the non-applicant has been treated cruelly with the applicant, and the non-applicant is living separately from applicant without any sufficient reason and without any cogent reason. Now, it has to be seen, whether the applicant has proved the fact of cruelty by solid evidence?
17. So far as question of cruelty concerned, cruelty cannot be proved only on the ground of the contention of husband and wife. Unless the contentions proved by the witnesses. In the petition for divorce on the ground of cruelty, only misunderstanding, or not having consonance, or uncontrolled temperament, in between the parties in matrimony, cannot be considered as the ground for cruelty. Now it has to be seen that, whether the solid evidences had been adduced by the applicant in regard to the cruelty and desertion? Effort has been made by applicant to tell this fact that, non-applicant put on fire by herself and filed a report against him. So far the question of put on fire by the non-applicant & proceeding against the applicant is concerned, it can come under the category of cruelty but this fact will have to be proved by evidence.
18. Arup das Gupta has stated in para 2 of his statement that his mother had come to his place Jamnipali in October 1993 then respondent had called him impotent in presence of his mother. Karobi Gupta, PW-1 has stated in her statement that plaintiff is her son and respondent is her daughter-in-law. She has stated in para 2 of her statement that, in October 1993 she was with plaintiff at Jamnipali. Respondent was also residing in Jamnipali. At that time respondent told her that, it is very particularly the applicant for whom she is issueless. It is not expressed from the statement of Karobi Gupta that non-applicant Rama Dasgupta had stated the applicant impotent. The marriage between non-applicant and applicant solemnized in May 1988 and because of not having child till October 1993, this statement of non-applicant that, it is very particularly the applicant for whom she is issueless, is quite natural and this possibility cannot be ruled out that Karobi Gupta who is the mother-in-law of the non-applicant asked the non-applicant the cause of issuelessness for five years, then the non-applicant replied that, it is the applicant for whom she is issueless. On the basis of this fact and on the basis of this statement of non-applicant that, it is the applicant for whom she is issueless, do not prove that non-applicant had stated applicant to be impotent. In addition to that, no other evidence has been adduced by the applicant and only with the statement of the applicant, this finding cannot be arrived that non-applicant has committed cruelty with the applicant by stating him to be impotent.
19. Now it has to be seen that whether non-applicant Rama Dasgupta has committed mental cruelty by torturing the applicant by any other means? S. Vedraman (PW-3) has stated in Para 1 of his statement that approximately 10 years ago, plaintiff had asked him shelter for living, as plaintiff was compelled to stay outside home due to the family reasons. But he did not state in detail, what was the problem. Then he stayed plaintiff at the place of his friend Murugan. Plaintiff remained there for 10-15 days. After few days his friend had expressed his inability to keep the plaintiff at his place due to his problem. S. Vedram who has adduced evidence on behalf of the plaintiff has not stated in his examination in chief about any reason in regard to separately living of plaintiff. This witness has not stated that applicant/plaintiff has been compelled to live separately due to the cruel behaviour of the non-applicant. On the contrary, this witness has stated in para 2 of his cross-examination that he did not have the knowledge of this fact that plaintiff asks the respondent to go out of his house, and as she does not want to go from there, then plaintiff himself left the house. It is true that, plaintiff did not come to take shelter at her place, he had not stated to Murugan regarding the dispute. It is true that employees get quarter in NTPC, and plaintiff has got the quarter and in this way it is not proved from the statement of the plaintiff witness Ved Raman that non-applicant/ respondent has ousted the plaintiff from house.
20. Arup Kumar Gupta, PW-5 has stated in para 4 of his statement that there was gradual change in the relation of the respondent and she started opposing everything, and it became difficult to live together. Then application had been filed for divorce. Respondent’s brother had given threat to kill him on 28.12.1994 whose report was lodged in the Darri Police Station. It has been stated in para 5 of his statement that on 24.1.1995 at night respondent shouted fire,fire. As he and respondent were sleeping separately, then he went there and saw that respondent was sitting on the cot and had thrown the quilt over the heater and got the fire caught, whose report was lodged, which is Ext.P-3 and its photocopy is Ext.P-3/C. Non-applicant Rama Dasgupta had stated in para 18 of her statement that applicant has taken the shape of Muslim by keeping beard in big size, and kept the room heater near in the side of the cot due to which the fire caught in the quilt by mistake and he had gone to the hospital and thereafter he abscond from quarter, took medical book and told that he is making his case strong. By this way, non-applicant has admitted the fact of putting fire but non-applicant has stated that this fire had caught by mistake and under such circumstances, the contention of the applicant that non-applicant had put the fire for torturing the applicant or for implicating him is not proved.
21. On behalf of the applicant the contention which has been raised in the written statement filed by the non-applicant earlier, the effort has been made to tell in this regard that, non-applicant alleged an illicit relation with another woman, which falls under the category of cruelty. Also non-applicant do not have faith to the religion of the applicant and it comes under the category of mental cruelty. Now it has to be seen as to whether the contention which had been raised by the non-applicant in the written statement falls under the category of mental cruelty?
22. It has been decided in, Hanumant Rao vs. Ramani reported in 2000 (1) Manisha 20 (Supreme Court) that, the detailed meaning of mental cruelty is this, that, the level of torture will be so high that, it breaks the bond between the spouses, and as a result of that, it becomes impossible by the party victimised, will live with the other. In other words, it is beyond expectation that, the party victimised, will live with - the party who is in error, though it has been laid down in the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported in AIR 2003 SC 2462 that if any allegation of unchastity is made against the character of woman having an illicit relationship with other man is mentioned, then it falls under the category of mental cruelty, but now, it has to be seen in this case, whether the contention which non-applicant Rama Dasgupta has raised, on the basis of that ground, it can be determined that non-applicant has committed mental cruelty towards the applicant.
23. In the case of Smt.Kakali Das Ghosh vs. Dr.Ashish Kumar Das reported in AIR 2003 Kolkata 287, where, petition was filed earlier on the ground of desertion and cruelty for the restitution of conjugal life on which wife had casted doubt over the character of husband, then it was laid down that this does not fall under the category of mental cruelty. In this regard Ram Kumar @ Ramendra Kumar vs. Smt. Raksha @ Gulabo reported in AIR 2003 P&H 334, judgement also to be seen. In that case also, husband filed petition for dissolution of marriage, then wife, in her written statement allegate against husband for having illicit relationship with the widow of cousin brother, then only on this ground it had not been considered that it falls under the category of mental cruelty. In this case also, non-applicant made the same allegation, in her written statement that, applicant has become Muslim and he has an illicit relationship with other woman and non-applicant had same stand in her judicial statement also.
24. Smt. Rama Dasgupta, (NAW-1), has stated in para 5 of her statement that at present her husband had accepted the Muslim religion. In general he has accepted the Muslim religion since 1993 and he has kept his name as Anwar and has stated in para 4 of the petition that applicant has left the house after 2001. Now the applicant is staying with Sunita Haldar, working in the health department at Banki, Mongra. Applicant resides in her quarter and there is a child also from her. This witness has stated in para 10 of the cross-examination that, “you made Sunita Haldar Your wife, you have a child from her.” This witness has stated in para 19 of her statement that he has ulcer and chronic disease and therefore she wants to render service to him and she wants to resides with him but the condition is that, the child and Sunita Haldar will not reside with him. In this way, non-applicant has categorically made statement that applicant is residing with a female called Sunita Haldar.
25. Though Arup Kumar Gupta has denied from this fact, but in this regard there is a contradiction in the statement of Sunita Haldar and Arup Kumar Gupta. Arup Kumar Gupta had stated in para 7 of his statement that he knew Sunita Haldar since 1998 and when he has been asked, the reason for divorce of Sunita Haldar, he did not reply straightly and stated that he does not want to reply. Whereas, Sunita Haldar, (PW-4) stated in para 2 of her statement that, she knows plaintiff from 1997. On that time she was doing job in Banki Mongra. She stated in para 3 of her statement that plaintiff used to visit her place since 1998, now it has been stopped. In this way, the statements of Sunita Hladar and applicant Arup Kumar Gupta are contradictory. According to Arup Kumar Gupta he knows Sunita Haldar since 1998. Whereas applicant visits the place of Sunita Haldar after 1997.Under such circumstances the statement of the non-applicant Rama Dasgupta becomes trustworthy. Sunita Haldar has stated in para 1 of her examination-in-chief that she obtained divorce with her husband A.K. Roy in the year 1998 and she has stated in para 2 of her statement that her opinion was not matched with her husband, therefore divorce took place. Applicant Arup Kumar Gupta has not clearly denied the relationship with Sunita Haldar.
26. Now it has to be seen that non-applicant Rama Dasgupta is living separately with the applicant without any sufficient and cogent reason. Arup Kumar Gupta (PW-5) stated in his statement that filed an application previously on the ground conversion of religion. The petition applicant filed, there he wrote his name, Arup Kumar Gupta @ Anwar. Applicant also contended in para 21 of the petition that non-applicant disrespect his religion Islam and this acts falls under the category of cruelty. By this way, from the statement of the applicant, it is expressed that, he has accepted Islam. Under such circumstances the applicant does not have the right to file a petition for dissolution of marriage under Hindu Marriage Act, 1955. As non-applicant Rama Dasgupta has clearly stated that applicant has become Muslim and under such circumstances non-applicant gets the right to be separated from the applicant.
27. Smt. Rama Dasgupta, (NAW-1), has stated in para 3 of her statement that applicant told her to draw the money from GPF fund for construction of house, then she had withdrawn Rs.50,000/-. Thereafter, applicant pressurized and quarrelling with her for deposit the money in his name, then she deposited the money in Post Office. As a reaction, applicant beated her, and one day locked the quarter, when
he was asked to open the door, then he replied to get an order from the the Court. Deen Dayal Aggarwal,(NAW-2) stated in para 2 of his statement that at present non-applicant resides alone in Yamuna Vihar quarter, earlier applicant was also residing in that quarter and it has been stated in para 2 of the statement that once the appllicant locked the house, then 5-7 persons broke the lock. This fact has not been refuted by the applicant. It is also an admitted fact that at present the house in which non-applicant Rama Dasgupta is residing is the house allotted to the applicant and it is clear from the evidence that applicant has left his house on his own will.
28. Smt. Rama Dasgupta, (NAW-1) has stated in para 9 of her statement that, applicant has changed his religion, therefore people look at her, with hate. She stated in para 12 of the statement that, this is a quarter of NTPC, this is wrong to say that he is not able to reside here. Applicant frequently visited there. He absconded for 3-4 days, again appears. She stated in para 18 of her statement that applicant took away the medical book and it is clear
that applicant is not residing in that house and this fact is affirmed from the statement of applicant witness S. Vedraman and it is expressed from the evidence adduced by the applicant that applicant is residing separately from non-applicant and under such circumstances, it cannot be stated that non-applicant has deserted the applicant two years prior to filing the present petition deliberately and without any sufficient reason and in this way the ground mentioned under Section 13(1)(a) and 13(1)(b) are not available in favour of the applicant. In this regard, the reliance has been placed upon the case of Parminder Charan Singh & Ors. vs.Harjeet Kaur reported in AIR 2003 SC 2310. As a result of it, suit issue Nos.2 & 3 are decided negatively in favour of the applicant and suit issue No.5 is replied in affirmative.
29. SUIT ISSUE NO.4
In view of the order dated 24.6.2004 passed by the Hon’ble Chhattisgarh High Court in First AppealNo.71 of 2001 Arup Kumar Gupta @ Anwar vs. Smt.Rama Dasgupta, parties have not led any emphasis on this suit issue , therefore in view of the said order of the Hon’ble High Court, this suit issue is not being disposed of.
30. SUIT ISSUE NO.6
Applicant/plaintiff has been completely unsuccessful in proving the fact that non-applicant Rama Dasgupta, married applicant by concealing her age and consent obtained by fraud. Applicant has also been unsuccessful in proving the fact that non- applicant treated him with cruelty, and she has been residing separately from the applicant for more than two years without any sufficient cogent reason and under such circumstances the applicant is neither entitled to get the marriage declared as null and void nor is entitled to get the decree of dissolution of marriage.
31. On the basis of the aforesaid discussion the case of applicants fails. The petition filed the applicant under Section 12(1)(c), 13(1)(a) and 13(1)(b) of Hindu Marriage Act, 1955 is rejected.
32. Keeping in view the facts and circumstances of the case, the parties will bear their own expenditure. On the advocate fee being certified, the fee as per the certificate or the schedule whichever is less shall be payable.
Decree should be prepared accordingly.
Judgment was pronounced today in open court.
Typed on my dictation.
Sd/- Illegible Sd/- Illegible
R.S. Sharma R.S. Sharma
District Judge District Judge
Korba(Chhattisgarh) Korba(Chhattisgarh)
/ TRUE TRANSLATED COPY /
In the Court of District Judge, Korba (Chhattisgarh)
Presiding justice: R.S. Sharma
Civil Suit No. 37A/2004
Arup Gupta @ Anawar S/o. Late S.K. Gupta, aged about 47 years, Service in N.T.P.C. R/o.Wireless operator K.S.T.P.S
N.T.P.C. Jaminipali, Korba, District Korba.
...Applicant/complainant.
Versus
Smt. Rama Gupta, aged about 50 years, D/o. P.K. Dasgupta
Occ. Teacher (Govt.), R/o. B-609 Yamuna Vihar, Jaminipali, Distt. Korba, Chhattisgarh.
...Non-applicant/Opp.Party.
On behalf of the applicant/complainant – Arup Kumar Gupta
Applicant.
On behalf of non-applicant/respondent – Adv. V.K.Gupta.
JUDGMENT
(Pronounced today on 3rd December, 2004)
1. The applicant has filed this application for passing of the decree of dissolution with non-applicant Smt.Rama Dasgupta under Section 13(1)(a) and 13(1)(b) and for declaring the marriage as null and void under Section 12(1)(c).
2. The admitted fact is this that the marriage between the applicant and non-applicant Rama Dasgupta was solemnized on 8.5.1988 in Raigarh as per Hindu rites and rituals. It is also an admitted fact that after the marriage, applicant and non-applicant Rama Dasgupta were residing in the allotted House No. B 609, Block No.1, Yamuna Vihar, Jaminipali. It is also an admitted fact that, no child was born, in this wedlock of applicant and non-applicant as a result of their conjugal life. It is also an admitted fact that applicant filed an application earlier under Section 13(a) of Hindu Marriage Act, 1955 in the Court of 4th Additional District Judge, Bilaspur and it was registered as Civil Misc.Case No.19-A of 1993 and the application filed by the applicant was rejected by the Hon’ble High Court under Order VII Rule 11 C.P.C.
3. The brief facts of the application of the applicant is like this that the marriage of the applicant was solemnized with non-applicant on 8.5.1988 in Raigarh, thereafter both the parties were residing in the house allotted to the applicant bearing House No.609, Block No.1, Yamuna Vihar, Jaminipali, Korba and both of them have resided together till January 1995. Thereafter a serious dispute started arising between the parties and non-applicant had got the house vacated forcibly from the applicant. No child was born as a result of this wedlock of the applicant and non-applicant. Non-applicant started behaving fraudulently in married life. The brother and sister-in-law of the non-applicant wrote a letter to the applicant and stated that the age of the non-applicant Rama Dasgupta is 32 years whereas actually the date of birth of the non-applicant is 20.12.1950 and non-applicant was elder to the applicant and by concealing this fact the marriage of the non-applicant Rama Dasgupta solemnized with the applicant and by this way the consent of the marriage had been obtained by concealing the fact in fraudulent manner, and the age of the wife cannot be more than the age of the husband in Baisya community of Bengalis, therefore applicant is entitled to get the marriage declared as null and void under Section 12(c) of Hindu Marriage Act, 1955. Non-applicant started behaving in cruel manner with applicant. Non-applicant Rama Dasgupta stated the applicant impotent, in presence of his parents, and which falls under the category of cruelty. Non-applicant behaved in a cruel manner with applicant by tarnishing the prestige of the applicant by making some serious allegations towards the applicant by writing a letter in his office. The non-applicant had earlier filed a reply in respect of the application of the applicant under Section 13(1)(a) of Hindu Marriage Act, 1955 where also the non-applicant had levelled serious allegations against the applicant which falls under the category of mental cruelty. Non-applicant compelled the applicant to leave his allotted house, and live separately. Applicant was compelled to leave the house only in one cloth and when applicant returned to collect his clothes after few days then pressure was puted upon by the non-applicant that he should permanently leave the house. whereas applicant had stated to the non-applicant that house has been allotted to the applicant, therefore she should vacate it, but non-applicant did not pay any attention to it and she was not ready to listen the applicant.
4. Non-applicant had burnt herself by fire and had started blackmailing the applicant and reported it too, to the police. By this way non-applicant regularly tortured the applicant, polluted the atmosphere treated the applicant with cruelty. As the applicant has been compelled to stay separately for more than two years due to the cruel treatment of non-applicant Rama Dasgupta, therefore the applicant is entitled to get the decree of dissolution of marriage under Section 13(1)(b) of Hindu marriage Act, 1955.
5. It is also one of the ground in his petition that, on the basis of the applicant’s being Muslim, non-applicant ignore and neglect her husband due to his religion. Non-applicant wrote a letter to the officer of the applicant Shri A.K. Basile, Sr. Engineer on 12.10.1999 and in there also applicant was humiliated, and the brother of the non-applicant also made a complaint against the applicant before his officer and this act falls under the category of the cruelty. Non-applicant started the cruel behaviour in the married life since beginning, by her fraudulent act and she has been making an effort to put pressure upon the applicant deliberately for living him separately by writing a letter in the office of the applicant which falls under the category of mental cruelty and it is not possible for the applicant and non-applicant to continue the married life and it is not possible for them to live together and non-applicant made an allegation upon the applicant in regard to the valuable property and in this way non-applicant has been behaving in a cruel manner with the applicant and therefore applicant is entitled to live separately due to the cruel behaviour and conduct of non-applicant Rama Dasgupta and he is entitled to get the decree of dissolution of marriage on the ground of cruelty. Therefore, the application filed on behalf of the applicant should be allowed and decree for dissolution of marriage should be passed.
6. Non-applicant Rama Dasgupta has mentioned in her written statement that no cruel behaviour has been done by the non-applicant. Applicant himself left the disputed house and applicant has made false allegation upon the non-applicant and there is no such rule that in Bengali Baisya community, the age of the wife cannot be more than the age of the husband. No false information in regard to the age has been given by the non-applicant nor any kind of fraudulent act has been done against him. Applicant has illicit relation with another woman and due to that reason, the applicant is causing mental, physical and economic loss to the non-applicant Rama Dasgupta and is being deprived from the marital life and relationship. So far as the question of cruelty is concerned, the cruel behaviour is being done by the applicant with the non-applicant. Applicant filed a petition being Civil Suit No.19A/1993 under Section 13 and 12(1) of Hindu marriage Act, 1955 and the Revision Petition No.1924/95 filed by the applicant had been dismissed by the Hon’ble High Court of Madhya Pradesh at Jabalpur on the ground of non-maintainability of the application. Applicant by crossing all the limits of the religion and customs, and despite being married, has established a illicit relation with another woman and wants to live separately from non-applicant by deliberately converting his religion. Applicant has never been stated to be impotent, by the non-applicant. The applicant has filed the case on false grounds and such situation are being created by the applicant by which non-applicant could be instigated to commit suicide and in this way such kind of cruel behaviour is being done by the applicant. Applicant is not entitled to get any kind of relief; therefore his application should be rejected.
7. On the basis of the contentions of the parties, following suit issues have been formulated and their findings have been shown in front of it :-
SUIT ISSUES FINDINGS
(1) Whether non-applicant Rama Not proved
Dasgupta, by played fraud
with the applicant Arup Kumar
that, her age less than Arup
Kumar, got married with him?
(2) Whether non-applicant Rama Not proved
Dasgupta treated applicant
With Cruelty?
(3) Whether non-applicant Rama Not proved
Dasgupta deserted the applicant
for more than two years before
the date of filing the case
without any cogent reason?
(4) Whether the applicant filed It was not petition under Section 12 & 13 disposed of
of Hindu Marriage Act, 1955
earlier before the Court of IVth
Addl.District Judge, Bilaspur which
was rejected and its revision was
rejected by the Hon’ble High Court
on 27.8.96 therefore, whether the
case of the applicant is not
maintainable?
(5) Whether the applicant despite Not proved
being with the non-applicant,
established illicit relationship
with another woman and from
her there is an issue?
(6) Relief and costs ? The application of the
Applicant is rejected.
FINDINGS AND REASONS
SUIT ISSUE NO.1
8. The effort has been made on behalf of the applicant to state this that non-applicant Rama Dasgupta has played a fraud with him by concealing the fact of her age. The age of the non-applicant was more than
the age of the applicant. She was approximately 37 years of age at the time of marriage whereas the age has been stated to be 32 years in the letter sent to the applicant. Non-applicant highly qualified woman and she was in service, therefore applicant married the non-applicant by believing on the facts stated by her and in this way the consent has been obtained by fraud and therefore applicant is entitled to get the marriage declared null and void under Section 12(1)(c) of Hindu Marriage Act, 1955. Contrary to this, the non-applicant has discarded the allegations of the applicant.
9. It has been stated under Section 12(1)(c) that if the consent has been obtained by fraud in regard to the material fact, or in regard to the circumstances, then under such circumstances party can make an application for declaring the marriage null and void.
But now it has to be seen whether actually the facts have been concealed on behalf of the non-applicant in regard to age?
10. Arup Kumar Gupta, (PW-5) has stated in para 1 of his statement that he had given an advertisement for marriage, on behalf of Rama Dasgupta by her elder brother Anup Dasgupta and his wife sent, its
reply. In which the age of Rama Dasgupta has been stated as 32 years, and letter bears the date 1.12.87. But the date of birth mentioned in the Government record of the respondent was 20.12.1950 and his age was 37 years at the time of writing the letter Ext.P-1 and this fact has been concealed and in cross examination also this witness stated that, this is not true that respondent’s brother had not stated the age of the respondent as 32 years to the parents of the applicant. The age of the non-applicant Rama Dasgupta is not more than that of applicant,it is also not stated by non-applicant. This fact has not been refused by Karobi Gupta, PW-1, Meghdeep Gupta, PW-2 that the age of the respondent have been stated to be 32 years at the time of marriage and respondent’s brother Anup Dasgupta stated by writing an inland letter that the age of the respondent is 32 years. It appears from the statement of the witness of the plaintiff that, the age of non-applicant is less than the applicant. But it has to be seen whether any fraudulent behaviour has been done by the non-applicant, in this regard?
11. Arup Kumar Gupta, PW-5, applicant himself, stated in para 3 of his statement that respondent has considered herself to be married only on the basis of the marriage as per the rites and rituals. The cruelty of the respondent had been since beginning. She stated herself as a woman of 32 years whereas she was 37 years old. But Arup Kumar Gupta has admitted in para 8 of his cross-examination that he had seen the respondent by visiting her house. It is true that he had seen the respondent prior to the marriage. He had given the consent for the marriage with this understanding that the respondent to be a girl of 32 years of age. It is clear from the statement of Arup Kumar Gupta that prior to the marriage applicant Arup Kumar Gupta saw non-applicant Rama Dasgupta and thereafter married her. In this way the applicant had the sufficient scope to know about the non-applicant and even thereafter the consent of the marriage was given. Under this circumstances, the cruel behaviour done with the applicant by concealing the facts of age, cannot be accepted.
12. It has been stated in Section 12(2), Part-A, sub-para(1), part(c) that, (1) petition is presented more than one year after the force has been ceased to operate or fraud has been discovered; (2) Petitioner, after the force has been ceased or the fraud exposed, residing with respondent as husband or wife.
13. It is clear from the perusal of part(a) of Sub-para (2) that after the knowledge of the fraudulent facts, application should be filed within a period of one year for getting the marriage declared as null and void.
14. According to the applicant, his marriage has been solemnized with the non-applicant in May 1988 and applicant has stated in para 3 of his petition that the parties have been residing together by the end of January 1995. Arup Kumar Gupta has stated in para 2 of his statement that in October 1993 his mother had come to Jamnipali then respondent had told him impotent and application for divorce had been filed in the year 2000 and in this way it is clear that applicant and non-applicant have resided together as husband and wife from 1988 to 1995 and applicant Arup Kumar Gupta has not expressed in his statement that when he has actually got the information in regard to the age of the non-applicant whereas according to the petition both of them resided together till 1995. Rama Dasgupra, NAW-1 has been cross-examined by the applicant. She has stated in para 2 of her statement that after the marriage, they have been residing together in the same quarter till 1996–1997 as husband and wife and it has been stated in the statement that the marriage had been solemnized at Ramgarh and then they had gone to Kolkata and thereafter she started residing in the house of the applicant at Jamnipali after 15 days after his transfer and this witness has made statement in para 16 of the statement that it is wrong to say that she has played fraud. You know about her age since beginning, the entire document was with you and had gone to Gwalior also for taking out the money.
15. It is clear from the statement of the applicant Arup Kumar Gupta and non-applicant Rama Dasgupta that much prior to the filing of the petition, applicant was having the information with regard to the age of non-applicant Rama Dasgupta. Even thereafter, applicant is keeping non-applicant in the form of his wife and under such circumstances, the application has been filed for declaring the marriage null and void one year after, having the knowledge of the facts of the fraud by the applicant which is not liable to be allowed and undisputedly in view of the provisions of para 12(1)(c) of Hindu Marriage Act, 1955 the application of the applicant is time barred. It has not been proved by the applicant that non-applicant Rama Dasgupta had acted fraudulently in regard to her age and had deceived the applicant. As a result of it, the finding of the suit issue No.1, is given against the applicant in negative manner.
SUIT ISSUE NOS.2, 3 & 5
16. All these three issues are related to each other and therefore they are being disposed of together.
Applicant has filed 24 pages petition in which he has contended in details in regard to the cruelty and has made an effort to tell that the non-applicant has been treated cruelly with the applicant, and the non-applicant is living separately from applicant without any sufficient reason and without any cogent reason. Now, it has to be seen, whether the applicant has proved the fact of cruelty by solid evidence?
17. So far as question of cruelty concerned, cruelty cannot be proved only on the ground of the contention of husband and wife. Unless the contentions proved by the witnesses. In the petition for divorce on the ground of cruelty, only misunderstanding, or not having consonance, or uncontrolled temperament, in between the parties in matrimony, cannot be considered as the ground for cruelty. Now it has to be seen that, whether the solid evidences had been adduced by the applicant in regard to the cruelty and desertion? Effort has been made by applicant to tell this fact that, non-applicant put on fire by herself and filed a report against him. So far the question of put on fire by the non-applicant & proceeding against the applicant is concerned, it can come under the category of cruelty but this fact will have to be proved by evidence.
18. Arup das Gupta has stated in para 2 of his statement that his mother had come to his place Jamnipali in October 1993 then respondent had called him impotent in presence of his mother. Karobi Gupta, PW-1 has stated in her statement that plaintiff is her son and respondent is her daughter-in-law. She has stated in para 2 of her statement that, in October 1993 she was with plaintiff at Jamnipali. Respondent was also residing in Jamnipali. At that time respondent told her that, it is very particularly the applicant for whom she is issueless. It is not expressed from the statement of Karobi Gupta that non-applicant Rama Dasgupta had stated the applicant impotent. The marriage between non-applicant and applicant solemnized in May 1988 and because of not having child till October 1993, this statement of non-applicant that, it is very particularly the applicant for whom she is issueless, is quite natural and this possibility cannot be ruled out that Karobi Gupta who is the mother-in-law of the non-applicant asked the non-applicant the cause of issuelessness for five years, then the non-applicant replied that, it is the applicant for whom she is issueless. On the basis of this fact and on the basis of this statement of non-applicant that, it is the applicant for whom she is issueless, do not prove that non-applicant had stated applicant to be impotent. In addition to that, no other evidence has been adduced by the applicant and only with the statement of the applicant, this finding cannot be arrived that non-applicant has committed cruelty with the applicant by stating him to be impotent.
19. Now it has to be seen that whether non-applicant Rama Dasgupta has committed mental cruelty by torturing the applicant by any other means? S. Vedraman (PW-3) has stated in Para 1 of his statement that approximately 10 years ago, plaintiff had asked him shelter for living, as plaintiff was compelled to stay outside home due to the family reasons. But he did not state in detail, what was the problem. Then he stayed plaintiff at the place of his friend Murugan. Plaintiff remained there for 10-15 days. After few days his friend had expressed his inability to keep the plaintiff at his place due to his problem. S. Vedram who has adduced evidence on behalf of the plaintiff has not stated in his examination in chief about any reason in regard to separately living of plaintiff. This witness has not stated that applicant/plaintiff has been compelled to live separately due to the cruel behaviour of the non-applicant. On the contrary, this witness has stated in para 2 of his cross-examination that he did not have the knowledge of this fact that plaintiff asks the respondent to go out of his house, and as she does not want to go from there, then plaintiff himself left the house. It is true that, plaintiff did not come to take shelter at her place, he had not stated to Murugan regarding the dispute. It is true that employees get quarter in NTPC, and plaintiff has got the quarter and in this way it is not proved from the statement of the plaintiff witness Ved Raman that non-applicant/ respondent has ousted the plaintiff from house.
20. Arup Kumar Gupta, PW-5 has stated in para 4 of his statement that there was gradual change in the relation of the respondent and she started opposing everything, and it became difficult to live together. Then application had been filed for divorce. Respondent’s brother had given threat to kill him on 28.12.1994 whose report was lodged in the Darri Police Station. It has been stated in para 5 of his statement that on 24.1.1995 at night respondent shouted fire,fire. As he and respondent were sleeping separately, then he went there and saw that respondent was sitting on the cot and had thrown the quilt over the heater and got the fire caught, whose report was lodged, which is Ext.P-3 and its photocopy is Ext.P-3/C. Non-applicant Rama Dasgupta had stated in para 18 of her statement that applicant has taken the shape of Muslim by keeping beard in big size, and kept the room heater near in the side of the cot due to which the fire caught in the quilt by mistake and he had gone to the hospital and thereafter he abscond from quarter, took medical book and told that he is making his case strong. By this way, non-applicant has admitted the fact of putting fire but non-applicant has stated that this fire had caught by mistake and under such circumstances, the contention of the applicant that non-applicant had put the fire for torturing the applicant or for implicating him is not proved.
21. On behalf of the applicant the contention which has been raised in the written statement filed by the non-applicant earlier, the effort has been made to tell in this regard that, non-applicant alleged an illicit relation with another woman, which falls under the category of cruelty. Also non-applicant do not have faith to the religion of the applicant and it comes under the category of mental cruelty. Now it has to be seen as to whether the contention which had been raised by the non-applicant in the written statement falls under the category of mental cruelty?
22. It has been decided in, Hanumant Rao vs. Ramani reported in 2000 (1) Manisha 20 (Supreme Court) that, the detailed meaning of mental cruelty is this, that, the level of torture will be so high that, it breaks the bond between the spouses, and as a result of that, it becomes impossible by the party victimised, will live with the other. In other words, it is beyond expectation that, the party victimised, will live with - the party who is in error, though it has been laid down in the case of Vijaykumar Ramchandra Bhate vs. Neela Vijaykumar Bhate reported in AIR 2003 SC 2462 that if any allegation of unchastity is made against the character of woman having an illicit relationship with other man is mentioned, then it falls under the category of mental cruelty, but now, it has to be seen in this case, whether the contention which non-applicant Rama Dasgupta has raised, on the basis of that ground, it can be determined that non-applicant has committed mental cruelty towards the applicant.
23. In the case of Smt.Kakali Das Ghosh vs. Dr.Ashish Kumar Das reported in AIR 2003 Kolkata 287, where, petition was filed earlier on the ground of desertion and cruelty for the restitution of conjugal life on which wife had casted doubt over the character of husband, then it was laid down that this does not fall under the category of mental cruelty. In this regard Ram Kumar @ Ramendra Kumar vs. Smt. Raksha @ Gulabo reported in AIR 2003 P&H 334, judgement also to be seen. In that case also, husband filed petition for dissolution of marriage, then wife, in her written statement allegate against husband for having illicit relationship with the widow of cousin brother, then only on this ground it had not been considered that it falls under the category of mental cruelty. In this case also, non-applicant made the same allegation, in her written statement that, applicant has become Muslim and he has an illicit relationship with other woman and non-applicant had same stand in her judicial statement also.
24. Smt. Rama Dasgupta, (NAW-1), has stated in para 5 of her statement that at present her husband had accepted the Muslim religion. In general he has accepted the Muslim religion since 1993 and he has kept his name as Anwar and has stated in para 4 of the petition that applicant has left the house after 2001. Now the applicant is staying with Sunita Haldar, working in the health department at Banki, Mongra. Applicant resides in her quarter and there is a child also from her. This witness has stated in para 10 of the cross-examination that, “you made Sunita Haldar Your wife, you have a child from her.” This witness has stated in para 19 of her statement that he has ulcer and chronic disease and therefore she wants to render service to him and she wants to resides with him but the condition is that, the child and Sunita Haldar will not reside with him. In this way, non-applicant has categorically made statement that applicant is residing with a female called Sunita Haldar.
25. Though Arup Kumar Gupta has denied from this fact, but in this regard there is a contradiction in the statement of Sunita Haldar and Arup Kumar Gupta. Arup Kumar Gupta had stated in para 7 of his statement that he knew Sunita Haldar since 1998 and when he has been asked, the reason for divorce of Sunita Haldar, he did not reply straightly and stated that he does not want to reply. Whereas, Sunita Haldar, (PW-4) stated in para 2 of her statement that, she knows plaintiff from 1997. On that time she was doing job in Banki Mongra. She stated in para 3 of her statement that plaintiff used to visit her place since 1998, now it has been stopped. In this way, the statements of Sunita Hladar and applicant Arup Kumar Gupta are contradictory. According to Arup Kumar Gupta he knows Sunita Haldar since 1998. Whereas applicant visits the place of Sunita Haldar after 1997.Under such circumstances the statement of the non-applicant Rama Dasgupta becomes trustworthy. Sunita Haldar has stated in para 1 of her examination-in-chief that she obtained divorce with her husband A.K. Roy in the year 1998 and she has stated in para 2 of her statement that her opinion was not matched with her husband, therefore divorce took place. Applicant Arup Kumar Gupta has not clearly denied the relationship with Sunita Haldar.
26. Now it has to be seen that non-applicant Rama Dasgupta is living separately with the applicant without any sufficient and cogent reason. Arup Kumar Gupta (PW-5) stated in his statement that filed an application previously on the ground conversion of religion. The petition applicant filed, there he wrote his name, Arup Kumar Gupta @ Anwar. Applicant also contended in para 21 of the petition that non-applicant disrespect his religion Islam and this acts falls under the category of cruelty. By this way, from the statement of the applicant, it is expressed that, he has accepted Islam. Under such circumstances the applicant does not have the right to file a petition for dissolution of marriage under Hindu Marriage Act, 1955. As non-applicant Rama Dasgupta has clearly stated that applicant has become Muslim and under such circumstances non-applicant gets the right to be separated from the applicant.
27. Smt. Rama Dasgupta, (NAW-1), has stated in para 3 of her statement that applicant told her to draw the money from GPF fund for construction of house, then she had withdrawn Rs.50,000/-. Thereafter, applicant pressurized and quarrelling with her for deposit the money in his name, then she deposited the money in Post Office. As a reaction, applicant beated her, and one day locked the quarter, when
he was asked to open the door, then he replied to get an order from the the Court. Deen Dayal Aggarwal,(NAW-2) stated in para 2 of his statement that at present non-applicant resides alone in Yamuna Vihar quarter, earlier applicant was also residing in that quarter and it has been stated in para 2 of the statement that once the appllicant locked the house, then 5-7 persons broke the lock. This fact has not been refuted by the applicant. It is also an admitted fact that at present the house in which non-applicant Rama Dasgupta is residing is the house allotted to the applicant and it is clear from the evidence that applicant has left his house on his own will.
28. Smt. Rama Dasgupta, (NAW-1) has stated in para 9 of her statement that, applicant has changed his religion, therefore people look at her, with hate. She stated in para 12 of the statement that, this is a quarter of NTPC, this is wrong to say that he is not able to reside here. Applicant frequently visited there. He absconded for 3-4 days, again appears. She stated in para 18 of her statement that applicant took away the medical book and it is clear
that applicant is not residing in that house and this fact is affirmed from the statement of applicant witness S. Vedraman and it is expressed from the evidence adduced by the applicant that applicant is residing separately from non-applicant and under such circumstances, it cannot be stated that non-applicant has deserted the applicant two years prior to filing the present petition deliberately and without any sufficient reason and in this way the ground mentioned under Section 13(1)(a) and 13(1)(b) are not available in favour of the applicant. In this regard, the reliance has been placed upon the case of Parminder Charan Singh & Ors. vs.Harjeet Kaur reported in AIR 2003 SC 2310. As a result of it, suit issue Nos.2 & 3 are decided negatively in favour of the applicant and suit issue No.5 is replied in affirmative.
29. SUIT ISSUE NO.4
In view of the order dated 24.6.2004 passed by the Hon’ble Chhattisgarh High Court in First AppealNo.71 of 2001 Arup Kumar Gupta @ Anwar vs. Smt.Rama Dasgupta, parties have not led any emphasis on this suit issue , therefore in view of the said order of the Hon’ble High Court, this suit issue is not being disposed of.
30. SUIT ISSUE NO.6
Applicant/plaintiff has been completely unsuccessful in proving the fact that non-applicant Rama Dasgupta, married applicant by concealing her age and consent obtained by fraud. Applicant has also been unsuccessful in proving the fact that non- applicant treated him with cruelty, and she has been residing separately from the applicant for more than two years without any sufficient cogent reason and under such circumstances the applicant is neither entitled to get the marriage declared as null and void nor is entitled to get the decree of dissolution of marriage.
31. On the basis of the aforesaid discussion the case of applicants fails. The petition filed the applicant under Section 12(1)(c), 13(1)(a) and 13(1)(b) of Hindu Marriage Act, 1955 is rejected.
32. Keeping in view the facts and circumstances of the case, the parties will bear their own expenditure. On the advocate fee being certified, the fee as per the certificate or the schedule whichever is less shall be payable.
Decree should be prepared accordingly.
Judgment was pronounced today in open court.
Typed on my dictation.
Sd/- Illegible Sd/- Illegible
R.S. Sharma R.S. Sharma
District Judge District Judge
Korba(Chhattisgarh) Korba(Chhattisgarh)
APPEAL AT HIGH COURT OF BILASPUR (ANNEXURE A-13)
IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G)
F.A. NO. 24 OF 2005
Date of Presentation
Arup Kumar Gutpa Alias Anwar
S/o Late S.K.Gupta, aged about 51 years,
Address:- Wireless Operator, N.T.P.C.,
K.S.T.P.S., Deptt. I.T.P.O. Jamnipali,
Tahsil Katghora, Distt. Kora, (C.G.)
..APPELLANT/ORIGINAL PLAINTIFF
VERSUS
Smt Rama Dasgupta, D/o
Late P.K.Dasgupta, aged about 54 years
Address:- B-609, Block-I, Yamuna Vihar,
P.O. Jamnipali, Tahsil
Katghora, Distt. Korba, (C.G)
.. RESPONDENT/ORIGINAL DEFENDANT
FIRST APPEAL UNDER SECTION 28 OF THE HINDU MARRIAGE ACT
Being dissatisfied and aggrieved by the Judgment order dated 09.11.2004, 17.11.2004 and 03.12.2004, by the Hon’ble Court of D.J. Korba this appellant prefer the appeal on the following facts and grounds:-
1.
Appellant filed a civil suit no. 37-A/2004 (former No. 13-A/2000) on 25.01.2000 under Section 12(1)(c), 13(1) (ia) & (ib) of the Hindu Marriage Act, 1955, in the court of Hon’ble Vth ADJ of the Court of D.J. Bilaspur, which transferred from Bilaspur to Korba, at the Court of Hon’ble D.J Korba on 1.10.2004. The petition rejected by the Hon’ble court of D.J.Korba on 03.12.2004.
(a) The certified copy of the judgment order dated 03.12.2004, against which appeal lies annexed as Annexure S-1.
(b) Copy of the petition, C.S.NO. 37-A/2004, annexed as Annexure S-2.
(c) Copy of written statement submitted by respondent, annexed as Annexure S-3.
(d) Copy of the witnesses of (i) A.K.Gipta (petitioner); (ii) Smt. K. Gupta; (iii) Shri M. Gupta; (iv) Shri S.Vedraman; (v) Shamita Haldar; (vi) Smt Rama Dasgupta (respondent): (vii) Shri D.D. Agrawal, annexed as Annexure S-4.
(e) Petitioner paid the process for call respondent’s sister in law as witness with due permission of the competent authority on 02.08.2004 and submitted a petition, dated 17.11.2004 for calling the said sister in law as witness and additional witness of petitioner to reply the new matter and allegations raised at the time of witness of respondent. Copy of process dated 02.08.2004 and the petition dated 17.1.2004 annexed as Annexure S-5.
2. Facts in brief
(i) Respondent solemnized marriage by cheating by personation with criminal conspiracy with petitioner. She frauded regarding her age. Due to cheating, it is not she, for whom the proposal of marriage was sent. She personated the imaginary person for whom offer was sent, vide Annexure P-1 (Page----). Anneuxre-P-1 consist of 3 pages, First page shows the letter of marriage proposal, which written in Bengali and where the age of the proposed bride was stated as 32 years. Second page is it’s English translation and third page shows the actual age of respondent as per her office record, which shows 37 years.
(ii) Annexure P-1 written by, brother, and his wife of respondent, therefore, the said wife, i.e. sister in law of respondent called on as witness on 02.08.2004 vide Annexure S-5 (page----), with due permission of competent authority. But she did not appear. On 14.09.2004, Hon’ble Vth A.D.J. of Bilaspur closed the witness chapter of petitioner, without the consent of petitioner.
(a) On her witness, respondent admitted that her sister in law and brother was deeply involved in the process of marriage .
(b) On her witness, respondent refuses to recognize any involvement of Annexure P-1, on her marriage. According to her, she does not know who wrote the letter dated 01.12.1987, of Annexure P-1, which bears the false statement of her age. Even she refuses to recognize/ confirm the handwriting of the said letter.
(c)In fact this will criminate respondent & her sister in law, which is a punishable offence under I.P.C. from which they are trying to get escaped.
(d) Petitioner attracted the attention of Hon’ble D.J., Korba for witness of sister in law, which is extremely necessary, a need of the hour, and without which, the very particular fact that, the letter dated 01.12.1987 of Annexure P-1 cannot be proved and a reasonable and justified conclusion can not be drawn. Also process was paid on 02.08.2004 for this purpose. Against this oral submission, Hon’ble D.J. Korba ruling that the scope of taking witness of petitioner’s side was over and completed. Therefore he will be deprived from it.
(e) On 17.11.2004 petitioner submitted in writing that, for the sake of justice, it is extremely necessary to call the said sister in law as witness and allow petitioner, to give additional witness for the purpose of reply to new matters and the charges imposed by respondent over petitioner, without which, the case can not be decided, on merit and according to law, but the learned judge refused it.
(iii) After solemnization of marriage, respondent did a series of cruelty and create cause of dissertation Though all are proved but they are declared disproved/ not proved by the Hon’ble D.J. of Korba showing some lame excuse and this or that reason, whimsically.
3.
In his judgment, following injustices done an error committed, by the Hon’ble D.J. Korba.
(i) In point no. 10 of the judgment order, learned judge raised the question that it has to be seen that whether respondent behaved fraudulently to communicate the material factor ‘age’ or not (Annexure S-1, Page---), and in point no 11 his decision / conclusion in this regard is thus, that petitioner had enough scope to know the whereabouts of respondent, till then he agreed for marriage, under this circumstances, it is disagreeable/ disbelieavable that respondent behaved fraudulently with petitioner, (Annexure S-1, Page-), Appellant most humbly submit that, the conclusion is materially erroneous due to following reasons.
(a) On what ground, a gentleman will disbelieve another gentleman, when the party given the said data (regarding age) in writing (Annexure P-1).
(b) Learned judge deliberately overlook the written communication, regarding age and its evidence value (Annexure P-1).
(c)Firstly, create obstacle to take the witness of sister in law of respondent and thereafter declared that P-1 is not proved (Annexure S-5 & S-1, Page---).
(d) Witness is witness only. It can not be dived into, witness of petitioner or respondent. A party call/bring witness for the interest of justice only. There is no legal provision to stop it ignoring the interest of justice.
(d) He neither considers nor given any weight age to the witness of petitioner, Smt K.Gupta & Shri M. Gupta who are telling that the respondent & her party lied on that time Annexure S-4,
(f) Learned judge only gave weightage to the witness of respondent, who only orally claim and do not submit any written evidence in her support. (Annexure S-4).
4.
(i) The first question of issue declared disproved/not proved also on the ground that the petition presented after one year of marriage, and when the fraud was discovered under section 12(2)(a) of the Hindu Marriage Act. Therefore, it is time barred and attracts limitation. In this regard, the humble submission is that:-
(a) The Hon’ble Vth A.D.J. Bilaspur already condones the delay.
For that reason, under 12 (1) (c) accepted and framed as an
issue.
(b) Prayer for condonation of delay in this regard, already is there
in the petition of trial court in point no. 5 & 31 of annexure S-2.
(c)The specific time when the fraud was discovered, mentioned in
point no.5 of the petition of trial court, annexure S-2.
(d) Respondent did not raise any question regarding this delay in
her W.S. or presented any communication before the court, latter
on, as because delay was already condoned considering the
genuine causes shown in the plaint.
(e) In a High Court decision, delay in condonable even after 12
years (citation will be given latter on).
(f) It is also overlook by the Learned Judge that the quarter
where petitioner and respondent raised that quarter allotted to
the petitioner from his office and for which he is still paying rent.
If one has to go, then it should be the respondent, who
unauthorized and unwontedly residing there, Several times, she
refused to leave the quarter, verbally and in writing, even in her
witness, she also expressed herself in same manner(AnnexureS4)
By this manner she behaved since the fraud exposed, and she
was requested to leave the quarter of petitioner. (Annexure S-2).
It clears her nature and character. Therefore, it cannot be said
that, petitioner and respondent lived together since 1988 to
1995. A forced occupation cannot establish the spousal
relationship. On the contrary it is crystal clear proves of cruelty
and dissertation (Annexure S-2).
(g) In point no. 14 of Annexure S-1, learned judge use a
particular portion of point 3 of Annexure S-2, of the petition and
have leave the rest portion, as it opposes the fact he desires to
establish. According to point 3 of Annexure S-2, though petitioner
and respondent resided together till the end of January, since
then respondent forced fully occupy the quarter.
(h) Misrepresentation as to the age and obtaining consent on it
is a fraud. Concealment of the fact that the wife is elder than her
husband is a fraud. “While wife shown younger than husband”.
Such things happened only, to obtain consent fraudulently. It is
known to the party, fraud, that if they communicate actual age,
the marriage negotiation will be stopped there. In Bengali Baidya
community and in general the other community also, -wife is
being chosen from the group of younger age of the mail. It is a
long lasting custom in India and Bengali Baidya community.
Witness of petitioner, Smt K. Gupta, Shri M. Gupta, Mr. S.
Vedraman and Shamita Haldar reflex it (Annexure-S-4, Page--).
As a matter of fact, when in negotiated marriage, such marriage
between an elder wife and younger husband occurs, court can
presume the existence of fraud. The onus then lies on the elder
wife to prove, that there was no fraud or concealment. Non
disclosure of the material, factor ‘age’ vitiates consent for
marriage and amounts to fraud.
Citation:- (1) Babui Panmato Kuer Vs. Ram Agya Singh, AIR 1968 Pat 190; (2) Som Dutt Vs. Raj Kumari AIR 1986 P & H 191; (3) P.J. More Vs. Valsa AIR 1992 Ker 176.
(i) In a marriage, where fraud exists, there if any party has to
suffer then the party frauded should suffer, not the party, who is
victim of fraud.
(j) According to Supreme Court decision, a marriage is legally
valid only after the marriage solemnized in due form.
Citation:-(1) Bhaurao Shankar Lokhandev Vs. State of
Maharasthra AIR 1965 S.C 1584 (2) Kunwal Ram Vs. Himachal
Pradesh Administration AIR 1966 S.C 614.
5.
(i) According to the Art. 16 (2) of the universal declaration of
Human rights, 1984 and Art. 23(3) of the International Covent on
Civil and Political Rights, 1966, - ‘No. marriage shall be entered
into, without the free and full consent of the intending spouses’.
India is signatory of the International Covent on Civil and Political
Rights, 1966.
(ii) According to Sec. 12 (1) (c) of the Hindu MarriageAct, 1955,
solemnization under fraud, void able and According to Sec.
5(ii)(a) of the Hindu Marriage Act, at the time of marriage,
neither party is incapable of giving a valid consent to it, without
which marriage is void.
(iii) Therefore, it is fundamental right, a personal liberty under
Art. 21 of The Constitution of India. A legally valid marriage will
be a marriage solemnized in due form with full and free consent
of the intending spouses, without which, it is a invalid marriage,
though solemnization held in due form.
(iv) Sec. 29 (3) of the Limitation Act, 1963 opposes the provision
of Sec. 12 (2) (a) of the Hindu Marriage Act.
(v) In a marriage, the legal value of solemnization is that, that it
is a declaration of the intending spouse that they have free and
full consent on marriage.
(vi) A fraud cannot be legalizing under the shelter of the Sec. 12
(2) (a) of the Hindu Marriage Act.
(vi) Consent for marriage is core material of a marriage. To give
this consent is one’s personal liberty under Art. 21 of the
Constitution of India. It cannot be obtained be fraud.
(vi) An adult person has always a right to live with other adult
person, out of matrimonial bonding. Therefore, it cannot be said
that as they were living under the same roof, therefore, they
were living as husband and wife. Very particularly, in the
background of long quarrel exist between them, which agreed by
both the parties, and one living with forced occupation and
against the will of the legal occupant.
(vii) If solemnization obtained by force or fraud it should be void
immediately. It is always open before the parties that they
solemnized their marriage further with free and full consent.
(viii) The act 12 (1) (a) violates the fundamental right of one by
making it void able instead of void one, and 12 (2) (a) makes it
more horrible ignoring the right of an individual. The tactful
approach of respondent clearly indicate that, one can easily make
a fraud, legalize under the shelter of void able marriage and the
provision of 12 (2) (a) of the Hindu Marriage Act.
(ix) The provision of ‘force or fraud’ on marriage, should be a void
one, instead of void able one and Sec. 12 (2) (a) of the Hindu
Marriage Act should be abolished.
(x) The legacy of the said act threatened one’s personal liberty on
marriage, under Art.21 of The Constitution of India. It is a
substantial question of law, which demands a careful
examination.
6.
Regarding the issue of 2,3, & 5 following is the submission of
appellant. The judgment order is erroneous due to the following
reasons:-
(a) Respondent framed two new story that, appellant brought
his divorce petition.
(1)Due to the relationship of him with Shamita Haldar; &
(2)As she did not give Rs. 50,000/- that’s why divorce petition
filed.
Both are imaginary & vague. Firstly, Divorce petition filed long
before the said relationship come into exist. Secondly, If
petitioner is a greedy for money, then it will be natural that he
will not leave the respondent only for a some of Rs. 50,000/
only,. Where respondent’s yearly income much more, than it.
Where respondent admits in her written statement that she wish
to stay & serve petitioner & want to make relationship with him
and she cares the will of petitioner. Form petitioner’s witness &
witness of Shamita Haldar it is clear that the relationship between
them come into exist only on the year of 1997/98. But the
relationship between petitioner & respondent destroyed just after
the fraud exposed, and day by day the gap between them
increased, Hon’ble D.J. did not count these facts in his judgment
order and did not allow taking witness by petitioner on new
matters, issues and charges raised by respondent.
(b) In point no. 27 of Annexure S-1, learned judge comments
that the petitioner did not oppose this fact. Firstly, he did not
allow taking witness on new facts, issues and charges raised by
respondent in her witness, Secondly he did not realize the matter
also. As the petitioner is the legal occupant, therefore, he locked
his quarter and advised respondent to bring the courts order if
she wish to stay there, Hence it is remarkable that after the
incidences of fire, it was not safe for petitioner to stay with
respondents. Under this circumstances respondent break the lock
with the help of some anti socials.
(c) In point No. 17 & 20 of Annexure S-1 learned judge observed
that,respondent reported the fact of fire, but it is untrue
petitioner reported it to police. Concerned evidences also not
taken into account and petitioner were purposely not allowed to
answer the new facts, issues & charges imposed by the
respondent on her witness.
(d) In point no. 18 of Annexure S-1 learned judge make a story
in favor of respondent that it might be that the said mother in law
asked respondent about her issueless ness, and on that time
respondent simply said that due to petitioner he is issueless. The
fact is somewhat different. In her witness, Smt K. Gupta told that
- in her presence, respondent told the said abuse i.e. ‘Napunsak’
to petitioner. The court of Vth ADJ Bilaspur noted it in a gentle
manner. Due to that, the word is drifted
from its original shape. Petitioner did not took objection as it is
one lady, who told about his son’s sex oriented abusement. In
her written statements and witness, respondent expressed this
view that petitioner responsible for her issueless ness. It exists in
writing. It is a separate matter that why a couple is issueless ness
but responsibility thrown over the petitioner by respondent is
completely a separate matter. It is obviously a treatment with
cruelty to petitioner by respondent and it is sorrowful that though
the learned judge noticed it but failed to realize the proper
significance of it and make a separate story that perhaps it might
be happen which for from the witness and evidence.
(e) In point no. 19, learned judge try to find out facts of cruelty &
dissertation from the witness of Shri Vedraman but he failed to
overlook the point that the petitioner requested for shelter due to
family reason. He provided it through his friend. But respondent
disturbed his friend for that reason, which was reported to him by
his friend and petitioner both. He repeated the same in cross-
examination also. Firstly respondent displaced petitioner from his
own quarter thereafter she displaced petitioner from another
shelter which petitioner got from a different source. It is a clear
treatment with cruelty by respondents to petitioner, which
learned judge simply overlook.
(f) In point’s no. 21,22,23,24 & 25 of Annexure S-1 following
complain of petition judged:-
Respondent disrespect petitioner’s religion, Islam, make false
defamatory complaints allegations without any proof, to
petitioners employer & general public where petitioner has no
reach; try to make petitioner jobless; & hited the girl child of
petitioner publicly. Learned judge carefully by pass the witness
and evidence in this regards. In her witness respondent boldly
told that, - she did all these. All these acts are severe treatment
of cruelty to petitioner by respondent and do not require any
further explanation. If a person have disrespect to the religion of
the other spouse; hit the girl child for her birth and write false
complains to superior of petitioner and general public against the
petitioner it is absolutely a treatment with cruelty and cause of
dissertation. No citation can oppose it.
(g) In point no. 26 of Annexure S-1, learned judge commented
that thus respondent gets the right of living separately. Petitioner
has no objection about it, but that does not mean that
respondent have any right to occupy, petitioner’s office quarter.
Till today she did not present any petition against petition for
separation, under such condition, she has no such legal right.
(h) In point 28 of Annexure S-1, learned judge taken only the
oral witness of respondent which are false statement and try to
prove that there is no cruelty & dissertation. He simply by passes
the witness & evidence available in petition, even he did not
taken it into account and use the witness in broken shape.
Therefore, the judgment order requires reversal.
7.
On Limitation:- The judgment order under appeal dated on
03.12.2004. Petitioner applied for certified copy on 06.12.2004.
He was called on 09.12.2004. On that day, it was not ready and
the next date given 13.12.2004. Certified judgment order
delivered on 13.12.2004. Therefore, the limit of 30 days is
09.01.2005. As it is Sunday, the appeal submitted on
10.01.2005. Appellant humbly submits that, therefore, the appeal
submitted within the limitation.
GROUNDS :
A. The case not decided, (a) on merit; & (b) according to law. The judgment order dated 03.12.2004 passed by Hon’ble D.J. of Korba is bad in law and contrary to the settled law of the land.
B. Hon’ble D.J. Korba failed to interpret and appreciate the provisions of Section 12 (1) (c); 12 (2) (a); 13 (1) (ia) & 13 (1) (ib) of the Hindu Marriage Act, 1955 and did not scrutinize the real meaning and intention of the legislature.
C. To determine a relationship whether matrimonial or not is a mixed question of fact & law. Alone fact or law cannot determine it.
D. The purpose of matrimonial relationship is to enjoy the life, if there is a failure, and then it can not be established, by ruling or law.
E. The basic intention and the total intention as a whole, of The Hindu Marriage Act are, to provide a matrimonial life. If there is a failure, the said relationship should be rejected otherwise it will go against the intention of the legislation.
F. A party, who has cheated another of his rightful claims, can not be allowed to deprive further from his right.
G. Life and liberty under the Article 21 of the Constitution of India directly related with matrimonial life. One can not be deprived from it by a tricky way.
H. Through the petition is against respondent by petitioner, but Hon’ble D.J. Korba allowed respondent to record a lot of
complains against petitioner and deprive petitioner from his legitimate claims.
I. A complain can not be the reply/answer of a complain.
J. Where only two persons are staying in a deserted manner, learned judge demand their, additional witness and ignore the evidences available
K. Where petitioner’s evidence and witness rejected without showing any cause there respondent’s oral witness accepted as a concrete witness and evidence.
L. Witness of petitioner and portion of the plaint use by the trial court in a broken shape and tried to prove that petitioner or failed to provide witness.
M. Serious charges of cruelty and cause of dissertation ignored and overlooked.
N. The judgment order is erroneous.
O. The learned D.J. deprived petitioner from taking the witness of the sister in law of respondent; petitioner was also not allowed to give additional witness and produce other witness and evidence on the new facts, issues and charges raised and imposed by respondent on her witness- by rejecting the written petition of petitioner (S-5).
P. Hon’ble D.J. Korba, carefully avoided the favorable points of petitioner and highlighted the negative points. On the contrary, highlighted favorable points of respondent and ignore the negative side of her witness and evidence produced.
Q. Hon’ble justice, avoid, by pass; and suppress the strong evidences of petitioner and highlighted and rely weak and false witness of respondent.
INTERIM RELIEF PRAYED FOR :-
(1) The Hon’ble D.J. Korba may please be directed (a) to call the sister in law of respondent as witness (b) allow appellant to give additional witness and submit evidence on the new matters, allegations and issues raised by the respondent in her witness.
(2) Stay on execution of the decree on C.S No. 37-A/2004 dated o3.12.2004.
(3) May kindly order to vacate the unauthorized occupation by respondent to petitioner’s office quarter.
PRAYER
(1) Looking to the facts and circumstances of the case the Hon’ble High Court may please allow the instant appeal and set aside the order dated 03.12.2004 passed by the Hon’ble D.J. Korba, Bilaspur in C.S. No. 37-A/2004 for ends of justice.
(2) The Hon’ble D.J. Korba may please be directed (a) to call the sister in law of respondent as witness. (b) Allow appellant to give additional witness and submit evidence on the new matter, allegations and issues raised by the respondent in her witness.
(3) It is prayed that, the said marriage may please be declared null and void.
(4) It is prayed that, a decree of divorce be passed considering the above mentioned grounds, in the interest of justice.
(5) May kindly grant judicial separation under the Hindu Marriage Act.
(6) May kindly order to vacate the unauthorized occupation by respondent to petitioner’s quarter
(7) Stay on execution of the Decree on C.S. No. 37-A/2004 Dated on 03.12.2004
BILASPUR
DATED 10.1.2005
Sd/-
APPELLANT
IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G)
F.A. NO. 24 OF 2005
Date of Presentation
Arup Kumar Gutpa Alias Anwar
S/o Late S.K.Gupta, aged about 51 years,
Address:- Wireless Operator, N.T.P.C.,
K.S.T.P.S., Deptt. I.T.P.O. Jamnipali,
Tahsil Katghora, Distt. Kora, (C.G.)
..APPELLANT/ORIGINAL PLAINTIFF
VERSUS
Smt Rama Dasgupta, D/o
Late P.K.Dasgupta, aged about 54 years
Address:- B-609, Block-I, Yamuna Vihar,
P.O. Jamnipali, Tahsil
Katghora, Distt. Korba, (C.G)
.. RESPONDENT/ORIGINAL DEFENDANT
FIRST APPEAL UNDER SECTION 28 OF THE HINDU MARRIAGE ACT
Being dissatisfied and aggrieved by the Judgment order dated 09.11.2004, 17.11.2004 and 03.12.2004, by the Hon’ble Court of D.J. Korba this appellant prefer the appeal on the following facts and grounds:-
1.
Appellant filed a civil suit no. 37-A/2004 (former No. 13-A/2000) on 25.01.2000 under Section 12(1)(c), 13(1) (ia) & (ib) of the Hindu Marriage Act, 1955, in the court of Hon’ble Vth ADJ of the Court of D.J. Bilaspur, which transferred from Bilaspur to Korba, at the Court of Hon’ble D.J Korba on 1.10.2004. The petition rejected by the Hon’ble court of D.J.Korba on 03.12.2004.
(a) The certified copy of the judgment order dated 03.12.2004, against which appeal lies annexed as Annexure S-1.
(b) Copy of the petition, C.S.NO. 37-A/2004, annexed as Annexure S-2.
(c) Copy of written statement submitted by respondent, annexed as Annexure S-3.
(d) Copy of the witnesses of (i) A.K.Gipta (petitioner); (ii) Smt. K. Gupta; (iii) Shri M. Gupta; (iv) Shri S.Vedraman; (v) Shamita Haldar; (vi) Smt Rama Dasgupta (respondent): (vii) Shri D.D. Agrawal, annexed as Annexure S-4.
(e) Petitioner paid the process for call respondent’s sister in law as witness with due permission of the competent authority on 02.08.2004 and submitted a petition, dated 17.11.2004 for calling the said sister in law as witness and additional witness of petitioner to reply the new matter and allegations raised at the time of witness of respondent. Copy of process dated 02.08.2004 and the petition dated 17.1.2004 annexed as Annexure S-5.
2. Facts in brief
(i) Respondent solemnized marriage by cheating by personation with criminal conspiracy with petitioner. She frauded regarding her age. Due to cheating, it is not she, for whom the proposal of marriage was sent. She personated the imaginary person for whom offer was sent, vide Annexure P-1 (Page----). Anneuxre-P-1 consist of 3 pages, First page shows the letter of marriage proposal, which written in Bengali and where the age of the proposed bride was stated as 32 years. Second page is it’s English translation and third page shows the actual age of respondent as per her office record, which shows 37 years.
(ii) Annexure P-1 written by, brother, and his wife of respondent, therefore, the said wife, i.e. sister in law of respondent called on as witness on 02.08.2004 vide Annexure S-5 (page----), with due permission of competent authority. But she did not appear. On 14.09.2004, Hon’ble Vth A.D.J. of Bilaspur closed the witness chapter of petitioner, without the consent of petitioner.
(a) On her witness, respondent admitted that her sister in law and brother was deeply involved in the process of marriage .
(b) On her witness, respondent refuses to recognize any involvement of Annexure P-1, on her marriage. According to her, she does not know who wrote the letter dated 01.12.1987, of Annexure P-1, which bears the false statement of her age. Even she refuses to recognize/ confirm the handwriting of the said letter.
(c)In fact this will criminate respondent & her sister in law, which is a punishable offence under I.P.C. from which they are trying to get escaped.
(d) Petitioner attracted the attention of Hon’ble D.J., Korba for witness of sister in law, which is extremely necessary, a need of the hour, and without which, the very particular fact that, the letter dated 01.12.1987 of Annexure P-1 cannot be proved and a reasonable and justified conclusion can not be drawn. Also process was paid on 02.08.2004 for this purpose. Against this oral submission, Hon’ble D.J. Korba ruling that the scope of taking witness of petitioner’s side was over and completed. Therefore he will be deprived from it.
(e) On 17.11.2004 petitioner submitted in writing that, for the sake of justice, it is extremely necessary to call the said sister in law as witness and allow petitioner, to give additional witness for the purpose of reply to new matters and the charges imposed by respondent over petitioner, without which, the case can not be decided, on merit and according to law, but the learned judge refused it.
(iii) After solemnization of marriage, respondent did a series of cruelty and create cause of dissertation Though all are proved but they are declared disproved/ not proved by the Hon’ble D.J. of Korba showing some lame excuse and this or that reason, whimsically.
3.
In his judgment, following injustices done an error committed, by the Hon’ble D.J. Korba.
(i) In point no. 10 of the judgment order, learned judge raised the question that it has to be seen that whether respondent behaved fraudulently to communicate the material factor ‘age’ or not (Annexure S-1, Page---), and in point no 11 his decision / conclusion in this regard is thus, that petitioner had enough scope to know the whereabouts of respondent, till then he agreed for marriage, under this circumstances, it is disagreeable/ disbelieavable that respondent behaved fraudulently with petitioner, (Annexure S-1, Page-), Appellant most humbly submit that, the conclusion is materially erroneous due to following reasons.
(a) On what ground, a gentleman will disbelieve another gentleman, when the party given the said data (regarding age) in writing (Annexure P-1).
(b) Learned judge deliberately overlook the written communication, regarding age and its evidence value (Annexure P-1).
(c)Firstly, create obstacle to take the witness of sister in law of respondent and thereafter declared that P-1 is not proved (Annexure S-5 & S-1, Page---).
(d) Witness is witness only. It can not be dived into, witness of petitioner or respondent. A party call/bring witness for the interest of justice only. There is no legal provision to stop it ignoring the interest of justice.
(d) He neither considers nor given any weight age to the witness of petitioner, Smt K.Gupta & Shri M. Gupta who are telling that the respondent & her party lied on that time Annexure S-4,
(f) Learned judge only gave weightage to the witness of respondent, who only orally claim and do not submit any written evidence in her support. (Annexure S-4).
4.
(i) The first question of issue declared disproved/not proved also on the ground that the petition presented after one year of marriage, and when the fraud was discovered under section 12(2)(a) of the Hindu Marriage Act. Therefore, it is time barred and attracts limitation. In this regard, the humble submission is that:-
(a) The Hon’ble Vth A.D.J. Bilaspur already condones the delay.
For that reason, under 12 (1) (c) accepted and framed as an
issue.
(b) Prayer for condonation of delay in this regard, already is there
in the petition of trial court in point no. 5 & 31 of annexure S-2.
(c)The specific time when the fraud was discovered, mentioned in
point no.5 of the petition of trial court, annexure S-2.
(d) Respondent did not raise any question regarding this delay in
her W.S. or presented any communication before the court, latter
on, as because delay was already condoned considering the
genuine causes shown in the plaint.
(e) In a High Court decision, delay in condonable even after 12
years (citation will be given latter on).
(f) It is also overlook by the Learned Judge that the quarter
where petitioner and respondent raised that quarter allotted to
the petitioner from his office and for which he is still paying rent.
If one has to go, then it should be the respondent, who
unauthorized and unwontedly residing there, Several times, she
refused to leave the quarter, verbally and in writing, even in her
witness, she also expressed herself in same manner(AnnexureS4)
By this manner she behaved since the fraud exposed, and she
was requested to leave the quarter of petitioner. (Annexure S-2).
It clears her nature and character. Therefore, it cannot be said
that, petitioner and respondent lived together since 1988 to
1995. A forced occupation cannot establish the spousal
relationship. On the contrary it is crystal clear proves of cruelty
and dissertation (Annexure S-2).
(g) In point no. 14 of Annexure S-1, learned judge use a
particular portion of point 3 of Annexure S-2, of the petition and
have leave the rest portion, as it opposes the fact he desires to
establish. According to point 3 of Annexure S-2, though petitioner
and respondent resided together till the end of January, since
then respondent forced fully occupy the quarter.
(h) Misrepresentation as to the age and obtaining consent on it
is a fraud. Concealment of the fact that the wife is elder than her
husband is a fraud. “While wife shown younger than husband”.
Such things happened only, to obtain consent fraudulently. It is
known to the party, fraud, that if they communicate actual age,
the marriage negotiation will be stopped there. In Bengali Baidya
community and in general the other community also, -wife is
being chosen from the group of younger age of the mail. It is a
long lasting custom in India and Bengali Baidya community.
Witness of petitioner, Smt K. Gupta, Shri M. Gupta, Mr. S.
Vedraman and Shamita Haldar reflex it (Annexure-S-4, Page--).
As a matter of fact, when in negotiated marriage, such marriage
between an elder wife and younger husband occurs, court can
presume the existence of fraud. The onus then lies on the elder
wife to prove, that there was no fraud or concealment. Non
disclosure of the material, factor ‘age’ vitiates consent for
marriage and amounts to fraud.
Citation:- (1) Babui Panmato Kuer Vs. Ram Agya Singh, AIR 1968 Pat 190; (2) Som Dutt Vs. Raj Kumari AIR 1986 P & H 191; (3) P.J. More Vs. Valsa AIR 1992 Ker 176.
(i) In a marriage, where fraud exists, there if any party has to
suffer then the party frauded should suffer, not the party, who is
victim of fraud.
(j) According to Supreme Court decision, a marriage is legally
valid only after the marriage solemnized in due form.
Citation:-(1) Bhaurao Shankar Lokhandev Vs. State of
Maharasthra AIR 1965 S.C 1584 (2) Kunwal Ram Vs. Himachal
Pradesh Administration AIR 1966 S.C 614.
5.
(i) According to the Art. 16 (2) of the universal declaration of
Human rights, 1984 and Art. 23(3) of the International Covent on
Civil and Political Rights, 1966, - ‘No. marriage shall be entered
into, without the free and full consent of the intending spouses’.
India is signatory of the International Covent on Civil and Political
Rights, 1966.
(ii) According to Sec. 12 (1) (c) of the Hindu MarriageAct, 1955,
solemnization under fraud, void able and According to Sec.
5(ii)(a) of the Hindu Marriage Act, at the time of marriage,
neither party is incapable of giving a valid consent to it, without
which marriage is void.
(iii) Therefore, it is fundamental right, a personal liberty under
Art. 21 of The Constitution of India. A legally valid marriage will
be a marriage solemnized in due form with full and free consent
of the intending spouses, without which, it is a invalid marriage,
though solemnization held in due form.
(iv) Sec. 29 (3) of the Limitation Act, 1963 opposes the provision
of Sec. 12 (2) (a) of the Hindu Marriage Act.
(v) In a marriage, the legal value of solemnization is that, that it
is a declaration of the intending spouse that they have free and
full consent on marriage.
(vi) A fraud cannot be legalizing under the shelter of the Sec. 12
(2) (a) of the Hindu Marriage Act.
(vi) Consent for marriage is core material of a marriage. To give
this consent is one’s personal liberty under Art. 21 of the
Constitution of India. It cannot be obtained be fraud.
(vi) An adult person has always a right to live with other adult
person, out of matrimonial bonding. Therefore, it cannot be said
that as they were living under the same roof, therefore, they
were living as husband and wife. Very particularly, in the
background of long quarrel exist between them, which agreed by
both the parties, and one living with forced occupation and
against the will of the legal occupant.
(vii) If solemnization obtained by force or fraud it should be void
immediately. It is always open before the parties that they
solemnized their marriage further with free and full consent.
(viii) The act 12 (1) (a) violates the fundamental right of one by
making it void able instead of void one, and 12 (2) (a) makes it
more horrible ignoring the right of an individual. The tactful
approach of respondent clearly indicate that, one can easily make
a fraud, legalize under the shelter of void able marriage and the
provision of 12 (2) (a) of the Hindu Marriage Act.
(ix) The provision of ‘force or fraud’ on marriage, should be a void
one, instead of void able one and Sec. 12 (2) (a) of the Hindu
Marriage Act should be abolished.
(x) The legacy of the said act threatened one’s personal liberty on
marriage, under Art.21 of The Constitution of India. It is a
substantial question of law, which demands a careful
examination.
6.
Regarding the issue of 2,3, & 5 following is the submission of
appellant. The judgment order is erroneous due to the following
reasons:-
(a) Respondent framed two new story that, appellant brought
his divorce petition.
(1)Due to the relationship of him with Shamita Haldar; &
(2)As she did not give Rs. 50,000/- that’s why divorce petition
filed.
Both are imaginary & vague. Firstly, Divorce petition filed long
before the said relationship come into exist. Secondly, If
petitioner is a greedy for money, then it will be natural that he
will not leave the respondent only for a some of Rs. 50,000/
only,. Where respondent’s yearly income much more, than it.
Where respondent admits in her written statement that she wish
to stay & serve petitioner & want to make relationship with him
and she cares the will of petitioner. Form petitioner’s witness &
witness of Shamita Haldar it is clear that the relationship between
them come into exist only on the year of 1997/98. But the
relationship between petitioner & respondent destroyed just after
the fraud exposed, and day by day the gap between them
increased, Hon’ble D.J. did not count these facts in his judgment
order and did not allow taking witness by petitioner on new
matters, issues and charges raised by respondent.
(b) In point no. 27 of Annexure S-1, learned judge comments
that the petitioner did not oppose this fact. Firstly, he did not
allow taking witness on new facts, issues and charges raised by
respondent in her witness, Secondly he did not realize the matter
also. As the petitioner is the legal occupant, therefore, he locked
his quarter and advised respondent to bring the courts order if
she wish to stay there, Hence it is remarkable that after the
incidences of fire, it was not safe for petitioner to stay with
respondents. Under this circumstances respondent break the lock
with the help of some anti socials.
(c) In point No. 17 & 20 of Annexure S-1 learned judge observed
that,respondent reported the fact of fire, but it is untrue
petitioner reported it to police. Concerned evidences also not
taken into account and petitioner were purposely not allowed to
answer the new facts, issues & charges imposed by the
respondent on her witness.
(d) In point no. 18 of Annexure S-1 learned judge make a story
in favor of respondent that it might be that the said mother in law
asked respondent about her issueless ness, and on that time
respondent simply said that due to petitioner he is issueless. The
fact is somewhat different. In her witness, Smt K. Gupta told that
- in her presence, respondent told the said abuse i.e. ‘Napunsak’
to petitioner. The court of Vth ADJ Bilaspur noted it in a gentle
manner. Due to that, the word is drifted
from its original shape. Petitioner did not took objection as it is
one lady, who told about his son’s sex oriented abusement. In
her written statements and witness, respondent expressed this
view that petitioner responsible for her issueless ness. It exists in
writing. It is a separate matter that why a couple is issueless ness
but responsibility thrown over the petitioner by respondent is
completely a separate matter. It is obviously a treatment with
cruelty to petitioner by respondent and it is sorrowful that though
the learned judge noticed it but failed to realize the proper
significance of it and make a separate story that perhaps it might
be happen which for from the witness and evidence.
(e) In point no. 19, learned judge try to find out facts of cruelty &
dissertation from the witness of Shri Vedraman but he failed to
overlook the point that the petitioner requested for shelter due to
family reason. He provided it through his friend. But respondent
disturbed his friend for that reason, which was reported to him by
his friend and petitioner both. He repeated the same in cross-
examination also. Firstly respondent displaced petitioner from his
own quarter thereafter she displaced petitioner from another
shelter which petitioner got from a different source. It is a clear
treatment with cruelty by respondents to petitioner, which
learned judge simply overlook.
(f) In point’s no. 21,22,23,24 & 25 of Annexure S-1 following
complain of petition judged:-
Respondent disrespect petitioner’s religion, Islam, make false
defamatory complaints allegations without any proof, to
petitioners employer & general public where petitioner has no
reach; try to make petitioner jobless; & hited the girl child of
petitioner publicly. Learned judge carefully by pass the witness
and evidence in this regards. In her witness respondent boldly
told that, - she did all these. All these acts are severe treatment
of cruelty to petitioner by respondent and do not require any
further explanation. If a person have disrespect to the religion of
the other spouse; hit the girl child for her birth and write false
complains to superior of petitioner and general public against the
petitioner it is absolutely a treatment with cruelty and cause of
dissertation. No citation can oppose it.
(g) In point no. 26 of Annexure S-1, learned judge commented
that thus respondent gets the right of living separately. Petitioner
has no objection about it, but that does not mean that
respondent have any right to occupy, petitioner’s office quarter.
Till today she did not present any petition against petition for
separation, under such condition, she has no such legal right.
(h) In point 28 of Annexure S-1, learned judge taken only the
oral witness of respondent which are false statement and try to
prove that there is no cruelty & dissertation. He simply by passes
the witness & evidence available in petition, even he did not
taken it into account and use the witness in broken shape.
Therefore, the judgment order requires reversal.
7.
On Limitation:- The judgment order under appeal dated on
03.12.2004. Petitioner applied for certified copy on 06.12.2004.
He was called on 09.12.2004. On that day, it was not ready and
the next date given 13.12.2004. Certified judgment order
delivered on 13.12.2004. Therefore, the limit of 30 days is
09.01.2005. As it is Sunday, the appeal submitted on
10.01.2005. Appellant humbly submits that, therefore, the appeal
submitted within the limitation.
GROUNDS :
A. The case not decided, (a) on merit; & (b) according to law. The judgment order dated 03.12.2004 passed by Hon’ble D.J. of Korba is bad in law and contrary to the settled law of the land.
B. Hon’ble D.J. Korba failed to interpret and appreciate the provisions of Section 12 (1) (c); 12 (2) (a); 13 (1) (ia) & 13 (1) (ib) of the Hindu Marriage Act, 1955 and did not scrutinize the real meaning and intention of the legislature.
C. To determine a relationship whether matrimonial or not is a mixed question of fact & law. Alone fact or law cannot determine it.
D. The purpose of matrimonial relationship is to enjoy the life, if there is a failure, and then it can not be established, by ruling or law.
E. The basic intention and the total intention as a whole, of The Hindu Marriage Act are, to provide a matrimonial life. If there is a failure, the said relationship should be rejected otherwise it will go against the intention of the legislation.
F. A party, who has cheated another of his rightful claims, can not be allowed to deprive further from his right.
G. Life and liberty under the Article 21 of the Constitution of India directly related with matrimonial life. One can not be deprived from it by a tricky way.
H. Through the petition is against respondent by petitioner, but Hon’ble D.J. Korba allowed respondent to record a lot of
complains against petitioner and deprive petitioner from his legitimate claims.
I. A complain can not be the reply/answer of a complain.
J. Where only two persons are staying in a deserted manner, learned judge demand their, additional witness and ignore the evidences available
K. Where petitioner’s evidence and witness rejected without showing any cause there respondent’s oral witness accepted as a concrete witness and evidence.
L. Witness of petitioner and portion of the plaint use by the trial court in a broken shape and tried to prove that petitioner or failed to provide witness.
M. Serious charges of cruelty and cause of dissertation ignored and overlooked.
N. The judgment order is erroneous.
O. The learned D.J. deprived petitioner from taking the witness of the sister in law of respondent; petitioner was also not allowed to give additional witness and produce other witness and evidence on the new facts, issues and charges raised and imposed by respondent on her witness- by rejecting the written petition of petitioner (S-5).
P. Hon’ble D.J. Korba, carefully avoided the favorable points of petitioner and highlighted the negative points. On the contrary, highlighted favorable points of respondent and ignore the negative side of her witness and evidence produced.
Q. Hon’ble justice, avoid, by pass; and suppress the strong evidences of petitioner and highlighted and rely weak and false witness of respondent.
INTERIM RELIEF PRAYED FOR :-
(1) The Hon’ble D.J. Korba may please be directed (a) to call the sister in law of respondent as witness (b) allow appellant to give additional witness and submit evidence on the new matters, allegations and issues raised by the respondent in her witness.
(2) Stay on execution of the decree on C.S No. 37-A/2004 dated o3.12.2004.
(3) May kindly order to vacate the unauthorized occupation by respondent to petitioner’s office quarter.
PRAYER
(1) Looking to the facts and circumstances of the case the Hon’ble High Court may please allow the instant appeal and set aside the order dated 03.12.2004 passed by the Hon’ble D.J. Korba, Bilaspur in C.S. No. 37-A/2004 for ends of justice.
(2) The Hon’ble D.J. Korba may please be directed (a) to call the sister in law of respondent as witness. (b) Allow appellant to give additional witness and submit evidence on the new matter, allegations and issues raised by the respondent in her witness.
(3) It is prayed that, the said marriage may please be declared null and void.
(4) It is prayed that, a decree of divorce be passed considering the above mentioned grounds, in the interest of justice.
(5) May kindly grant judicial separation under the Hindu Marriage Act.
(6) May kindly order to vacate the unauthorized occupation by respondent to petitioner’s quarter
(7) Stay on execution of the Decree on C.S. No. 37-A/2004 Dated on 03.12.2004
BILASPUR
DATED 10.1.2005
Sd/-
APPELLANT
Subscribe to:
Posts (Atom)
About Me
- Arup Kumar Gupta
- A gentle person; interested in the marriage acts; constitution; law related matters; corruption in india.