IN THE SUPREME COURT OF INDIA
{ ORDER XVI RULE 4(i)(A) }
SPECIAL LEAVE PETITION
(Under Article 136 of the Constitution of India)
SPECIAL LEAVE PETITION (CIVIL) NO. 21666 OF 2008
(WITH PRAYER FOR INTERIM RELIEFS)
Position of Parties

In the High Court of In this Hon’
Chhttisgarh,Bilaspur ble Court

BETWEEN :
Arup Kumar Gupta @ Anwar Appellant Petitioner
S/o.Late S.K. Gupta
Address Wireless Operator
N.T.P.C., K.S.T.P.S.
Deptt. of Information Technology
P.O.Jamnipali, Tehsil Katghora
District Korba, Chhattisgarh.

AND
Smt.Rama Dasgupta Respondent Contesting
D/o.Late P.K. Dasgupta Respondent
B-609, Block-I,Yamuna Vihar
P.O.Jamnipali, Tehsil Katghora
District Korba, Chhattisgarh.

To
The Hon’ble the Chief Justice of India and His Companion
Justices of the Supreme Court of India at New Delhi
The humble petition of the Petitioner abovenamed
MOST RESPECTFULLY SHOWETH :
1. That the petitioner is filing the present Petition seeking Special Leave to Appeal under Article 136 of the Constitution of India against the impugned Judgment and final Order dated 22.04.2008 passed by the High Court of Chhattisgarh at Bilaspur in F.A. No. 24 of 2005 whereby the Single Judge of the Hon’ble High Court dismissed the above mentioned first appeal being devoid of any substance and confirmed the order of the trial court dated 03.12.2004.
2. QUESTIONS OF LAW :
The important and substantial questions of law of public importance that are sought to be raised herein and which deserve to be decided by Your Lordships are as under :-
(i) Whether the courts bellows were failed to appreciate that the respondent started her matrimonial life in a fraudulent manner by communicating the age of the bride was 32 years, where her actual age was 36 years 11 months 12 days say about 37 years?
(ii) Whether the courts bellows were failed to appreciate that the respondent started her matrimonial life in a fraudulent manner by communicating the age of the bride was 32 years, where her actual age was, say about 37 years, which is a criminal offence under sec.416 & 419 of The Indian Penal Code?
(iii) Whether the courts bellows were right in not appreciating that the act of fraudulent behavior by the respondent to the petitioner before and after the marriage attracts the provisions of Sec 13 (1) (i a) and (i b) of the Hindu Marriage Act, 1955?
(iv) Whether the courts bellow were right in not appreciating that the act of fraudulent behavior by the respondent to the petitioner not only constitutes the consent obtained by fraud, but also constitutes a treatment of mental cruelty & dissertation?
(v) Whether the courts bellow were failed to appreciate that 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?
(vi) Whether the courts bellow were failed to note that the living together or staying together with respondent under the same roof was under ‘compulsion’ & not ‘voluntarily’ – by the petitioner?
(vii) Whether the courts bellow were failed to note that the fraud was discovered while respondent came with her office records for the purpose of joining the government school, Jamnipali, where she presently posted – which is clearly written in the trial court & high court petition ?
(viii) Whether the courts bellow were right in not appreciating that the marriage is a negotiated one, petitioner is an innocent person, respondent is a highly educated person & she was bound to keep the interest of the petitioner?
(ix) Whether the courts bellow were right in not appreciating that respondent can not communicate a false information, very particularly where marriage is concerned?
(x) Whether the courts bellow were justified enough in their judgments that, petitioner had enough scope to satisfy himself in regard to respondent’s age and ignored that it is impossible to know the exact age of a person only by his/her appearance?
(xi) Whether the courts bellows were wrong in not appreciating that, the respondent wrote the letter dated 20.09.1999 to the top level employer of petitioner and the general public, some false complains against petitioner whose hard evidence is available in the form of ‘letter’, and respondent also confirms in her witness that – ‘she wrote the letter’ which caused tremendous mental agony and loss of reputation to the petitioner?
(xii) Whether the courts bellows were wrong in not appreciating that, the respondent’s brother wrote the letter dated 05.02.1999 to the employer of petitioner, the then ministers of the state of M.P., some false complains against petitioner whose hard evidence is available in the form of ‘letter’, and respondent also told in her witness that – her brother wrote the said letter which is derogatory in nature?
(xiii) Whether the courts bellow were right in not appreciating that it is impossible for the petitioner to live with respondent under the same roof due to the feeling of strong insecurity as the respondent threatened to kill herself and implicate the petitioner in false case?
(xiv) Whether the courts bellow were right in not appreciating that the petitioner already reported the trial court and ask for direction to live separately ?
(xv) Whether the courts bellow were failed to note that the respondent threatened, blackmailed & did not allow petitioner to take the household items, even the cloths of the petitioner from his own quarter ?
(xvi) Whether the courts bellow were failed to note that the life of the petitioner is in great danger and the petitioner had lodged a police report to that effect and upon investigation by the police, report was submitted indicating the imminent threat of life and property of the petitioner?
(xvii) Whether the courts bellow were right in not appreciating to allow petitioner to provide further witness to substantiate his claim of misrepresentation ?
(xviii) Whether the courts bellow were erred in not allowing the petitioner to examine the witness so as to provide undue favor to respondent?
(xix) Whether the courts bellow were failed to note that the government accommodation from which, petitioner was ejected by respondent, is the property of petitioner by virtue of his service, and for which he is paying rent till today?
(xx) Whether the courts bellows were justified in observing that ‘the respondent had set herself on fire and report to the police’, whereas on the contrary the petitioner report the same to police station which confirmed by petitioner in his witness, whereas respondent told in her witness that ‘there is no police report’.
(xxi) Whether the courts below were right in not appreciating that cruelty committed by the respondent caused grievous hurt to the petitioner and unbearable mental agony for which the petitioner was forced to leave the house and started living separately and thus rightly claimed separation/divorce as per Section 13(1) of Hindu Marriage Act?
(xxii) Whether the courts below were right in not appreciating the fact that though the parties were living under a common roof but they were not leaving as husband & wife because serious disputes arose between them and thus spousal relationship was completely lost?
(xxiii) Whether the courts below were justified to bypass the statement of Smt. Karabi Gupta that respondent told her “it is very specifically thepetitioner for whom;
she was not able to conceive any issue”?
(xxiv) Whether the courts below were concentrated their pointed attention in the words of Smt. Karabi Gupta’s statement “very specifically”, which clearly reflects that, according to respondent, petitioner is liable for respondent’s issuelessness ?
Ø Whether the courts bellows were concentrated their pointed attention that the said abuse is a sexual abuse which described by a lady?
(xxv) Whether the courts below were justified in making a story in favor of respondent with an intention to dilute a serious matter of cruelty i.e., respondent abused petitioner as ‘impotent’?
(xxvi) Whether the courts below overlooked the fact that in her written statement (point no 6) and some other places, respondent given in writing with signature that due to petitioner she is issueless which bears the same meaning?

(xxvii) Whether the courts below were unjustified in bypassing and overlooking the issue that, respondent is cruel enough to the petitioner, in abusing his innocent girl child by the word ‘illegal’?
(xxviii) Whether the courts below were failed to note that respondent wrote in her letter that petitioner has an illegal child?
(xxix) Whether the courts below were unjustified in not keeping their pointed attention on the issue that the birth of a child within or without wedlock, does not bear the ‘legitimacy’ or ‘illegitimacy’ of that child?
(xxx) Whether the courts below were right in not appreciating that raising the question of ‘illegitimacy’ of a child is against the basic human values & every child of India to-day, is the citizen of India, tomorrow, & they are having equal rights?

(xxxi) Whether the courts below were right in not appreciating that the girl child is the only issue of petitioner and it is his softest corner also, still then, respondent hits the girl child by raising the point of legitimacy with an intention to hit petitioner intentionally to hurt his tender feelings and reach harm to the petitioner?
(xxxii) Whether the courts below were failed to note that while the respondent trying to get the sympathy and shelter under the popular slogan of “woman torture”’ simultaneously, she herself is active, to torture the female infant baby of petitioner with intention to hit petitioner?
(xxxiii) Whether the courts below were right in not appreciating that respondent hate petitioner’s religion, Islam & in various stages, different places and in her written statement, the respondent abused and condemned the Islam?
(xxxiv) Whether the courts below were failed to trace out the prayer for condonation of delay which is already there in the trial court petition, point nos. 5 & 31 and whether the courts below failed to trace out the reason of such refusal in their judgment?
(xxxv) Whether the courts below were failed to appreciate that the so called marriage is irretrievably broken-down?
(xxxvi) Whether the courts bellows were wrong in not appreciating the hard evidences available on record, though all the grounds were proved, but they declared it ‘not proved’, which constitutes illegality and infirmity in the impugned judgments of trial court & high court?
(xxxvii) Whether the courts below were right in not allowing petitioner to take the witness of respondent’s sister in law, in the context of refusing to recognize the handwriting of the said sister in law, by respondent?

3. DECLARATION IN TERMS OF RULE 4(2) :
The petitioner states that no other or similar petition seeking leave to appeal has been filed by the petitioner against the impugned Judgment and order dated 22.04.2008 passed by the High Court of Chhattisgarh at Bilaspur in F.A. No. 24 of 2005.
However, the petitioner shall move a separate petition under Article 32 of the Constitution of India for violation of his fundamental rights enshrined under Article 21 of the Constitution against the impugned order.
4. DECLARATION IN TERMS OF RULE 6 :
That Annexures attached / produced alongwith the Special Leave Petition are true copies of the pleadings/ documents which formed part of the records of the case in the Court/Tribunal below against whose order the leave to appeal is sought for in this petition.
5. GROUNDS :
The leave to appeal is sought for on the following grounds:-

A. That the Hon’ble High Court ought to have appreciated that the respondent’s brother and his wife misrepresented the age of the respondent as 32 years at the time of marriage to the petitioner and thereby obtained consent by playing fraud or cheating while actually the respondent was born on 20.12.1950 and the petitioner’s date of birth is 06.12.1953 and thus she is elder than the petitioner.
B. That the Hon’ble High Court ought to have appreciated that the court below failed to note that a clear misrepresentation and fraud was established from the documentary proof regarding date of birth of respondent and proposal sent by the respondent’s family for her marriage wherein her date of birth was deliberately shown lesser and dishonestly obtained consent from the petitioner.
C. That the Hon’ble High Court ought to have appreciated that cruelty committed by the respondent caused grievous hurt to the petitioner and unbearable mental agony for which the petitioner was forced to leave the house and started living separately and thus rightly claimed separation/divorce as per Section 13(1) of Hindu Marriage Act.
D. That the Hon’ble High Court ought to have appreciated that though the parties are living in a common roof till 1995 but as serious disputes arose between them regarding misrepresentation and obtained fraudulent consent of marriage by the family members of the respondent and on that reason the marriage could not be termed as void.
E. That the Hon’ble High Court ought to have appreciated that the court below was wrong in holding that the petitioner since negotiation of marriage was of the knowledge about the date of birth of respondent whereas it is clear from the proposal sent by family members of the Respondent which shows that the age of the respondent is 32 instead of 37 and no certificates were produced or shown to the petitioner at the time of marriage or immediately thereafter.
F. That the Hon’ble High Court ought to have appreciated that that as soon as the petitioner came to know about the real date of birth of respondent, he was mentally upset as the consent for marriage was obtained by the family members of the respondent by playing fraud and cheating, and thus the petitioner having no other alternate suitable remedy available, filed the divorce petition under Section 13(1) of Hindu Marriage Act, 1955 and thus Section 12(1)(a) cannot be attracted in the present case.

G. That the Hon’ble High Court ought to have appreciated that the trial court had failed to provide an opportunity to examine the sister-in-law of the respondent who was present all the time when negotiation for marriage was going on so as to bring on record the real truth in respect of the date of birth of the respondent for which petitioner sought permission from the trial court which was neither rejected nor allowed by the trial court but simply overlooked and thus the judgment and decree dated 03.12.2004 is liable to be set aside.
H. It is submitted that the case of the petitioner not decided, (a) on merit; & (b) according to law. The judgment order dated 03.12.2004 passed by Hon’ble Trial Court is bad in law and contrary to the settled law of the land.
I. It is submitted that the case of the petitioner not decided, (a) on merit; & (b) according to law. The impugned judgment order dated 22.04.2008 passed by Hon’ble High Court is bad in law and contrary to the settled law of the land.
J. It is submitted that to determine a relationship whether matrimonial or not is a mixed question of fact & law. Alone fact or law cannot determine it.
K. It is also submitted that 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.
L. It is submitted that 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.
M. It is submitted that a party, who has cheated another of his rightful claims, can not be allowed to deprive further from his right.
N. It is submitted that the 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.
O. Through the petition is against respondent by petitioner, but, Hon’ble trial court allowed respondent to record a lot of complains against petitioner and deprive petitioner from his legitimate claims.
P. A complain cannot be the reply/answer of a complain.
Q. Where only two persons are staying in a deserted manner, learned judge demand their, additional witness and ignore the evidences available
R. Where petitioner’s evidence and witness rejected without showing any cause there respondent’s oral witness accepted as a concrete witness and evidence.
S. That the witness of petitioner and portion of the plaint used by the trial court in a broken shape and tried to prove that petitioner failed to provide witness.
T. the serious charges of cruelty and cause of dissertation ignored and overlooked.
U. That the courts below 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.
V. That the courts below 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.
W. That the courts below avoid, bypass and suppress the strong evidences of petitioner and highlighted and rely weak and false witness of respondent.
X. That even otherwise the judgment under challenge is bad in law, contrary to the facts of the case and preponderance to the weight of evidence on record and therefore liable to be interdicted by this Hon’ble Court under Article 136 of the Constitution of India.
Y. That the petitioner reserves his right to add, alter or
modify any of the grounds, if necessary, at the time of hearing.
6. GROUNDS FOR INTERIM RELIEFS :
(1) It is submitted with utmost respect that if the impugned judgment and final order dated 22.04.2008 passed by the High Court of Chhattisgarh at Bilaspur in F.A. No. 24 of 2005 till the disposal of the present Special Leave Petition, the petitioner will be put to irreparable loss and injury and grave and substantial injustice will be done to him.

(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 matters, allegations and issues raised by the respondent in her witness.
(3) Stay on execution of the decree on C.S No. 37-A/2004 dated o3.12.2004.
(4) May kindly order to vacate the unauthorized occupation by respondent to petitioner’s office quarter.

(5) Equity and balance of convenience lies in granting the petitioner an ad-interim ex-parte stay on the operation and implementation of the judgment and final order dated 22.04.2008 passed by the High Court of Chhattisgarh at Bilaspur in F.A. No. 24 of 2005. The petitioner has a good case on merit and is confident of succeeding before this Hon’ble Court.
7. MAIN PRAYER :
It is, therefore, respectfully prayed that this Hon’ble Court may be pleased to :-
(a) grant Special Leave to Appeal against the Judgment and final order dated 22.04.2008 passed by the High Court of Chhattisgarh at Bilaspur in F.A. No. 24 of 2005;
(b) and pass such other or further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
8. PRAYER FOR INTERIM RELIEF :
It is, therefore, respectfully prayed that this Hon’ble
Court may be pleased to :-
(a) grant ad-interim ex-parte stay of the operation, implementation and execution of the Judgment and final order dated 22.04.2008 passed by the High Court of Chhattisgarh at Bilaspur in F.A. No. 24 of 2005;
(b) grant ad-interim ex-parte stay of the operation, implementation and execution of the Judgment and decree dated 03.12.2004 passed by the District Judge, Korba in Civil Suit No.37-A of 2004;
(c) direct the respondent to vacate and handover the peaceful possession the official accommodation of the petitioner bearing No.B-609, Block-I, Yamuna Vihar, P.O. Jamnipali, Tehsil Katghora, District Korba, Chhattisgarh;
(d) and pass such other or further order or orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
AND FOR THIS ACT OF KINDNESS THE HUMBLE PETITIONER AS IN DUTY BOUND SHALL EVER PRAY.

FILED BY

(ARUP KUMAR GUPTA)
PETITIONER-IN-PERSON
NEW DELHI
DRAWN ON:28.07.2008
FILED ON : 30.07.2008