RELATED LAWS CONCERNED TO THIS CASE.

Releated laws concerned to this case.
THE HINDU MARRIAGE ACT:-

5. A marriage may be solemnized between any two Hindus, if the following conditions are fulfilled, namely:- (ii) At the time of the marriage, neither party-
(a) is incapable of giving a valid consent to it in consequence of unsoundness of mind;
11. Void marriages. Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto against the other party, be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.
12. Voidable marriages.
(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely
(c) That the consent of the petitioner, in marriage was obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent or
(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if-
(i) The petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or
(ii) The petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife-after the force had ceased to operate or, as the case may be, the fraud had been discovered;
(b) On the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied
(i) That the petitioner was at the time of the marriage ignorant of the facts alleged;
(iii) That marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of the said ground.
13. Divorce. (1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the, husband or the wife, be dissolved by a decree of divorce on the ground that the other party-
(ia) Has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) Has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
13 (1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground-
(i) That there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) That there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
13A. Alternate relief in divorce proceedings. In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.
13B. Divorce by mutual consent.
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, (68 of 1976.) on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree
17. Punishment of bigamy. Any marriage between two Hindus solemnized after the commencement of this Act is void if at the date of such marriage either party had a husband or wife living; and the provisions of sections 494 and 495 of the Indian Penal (45 of 1860) Code shall apply accordingly.
18. Punishment for contravention of certain other conditions for a Hindu marriage.
Every person who procures a marriage of himself or herself to be solemnized under this Act in contravention of the conditions specified in clauses (iii), (iv) and (v) of section 5 shall be punishable-
(a) In the case of a contravention of the condition specified in clause (iii) of section 5, with simple imprisonment which may extend to fifteen days, or with fine which may extend to one thousand rupees, or with both;
(b) In the case of a contravention of the condition specified in clause (iv) or clause (v) of section 5, with simple imprisonment which may extend to one month, or with fine which may extend to one thousand rupees, or with both
28. Appeals from decrees and orders.
(1) All decrees made by the court in any proceeding under this Act shall, subject to the provisions of sub- section (3), be appealable as decrees of the court made in the exercise of its original civil jurisdiction, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in the exercise of its original civil jurisdiction. (2) Orders made by the court in any proceeding under this Act under section 25 or section 26 shall, subject to the provisions of sub-section (3), be appealable if they are not interim orders, and every such appeal shall lie to the court to which appeals ordinarily lie from the decisions of the court given in exercise of its original civil jurisdiction.
(3) There shall be no appeal under this section on the subject of costs only. (4) Every-appeal under this section shall be preferred within a period of thirty days from the date of the decree or order.

A Vs R - PART - I.

Part I


1. Against a matrimonial advertisement by me for my own marriage, Smt. Rama Dasgupta, her brother Mr. Anupom DasGupta, wife of Mr. Anupom & sister in law of Smt. Rama (name unknown), sent a proposal of marriage on behalf of Smt. Rama , for one imaginary person - who’s age was 32 years as on 1.12.1987. The copy of the letter dated 1.12.1987. (anx. 1)

2. Smt. Rama & her party sent the proposal, very specifically for one imaginary person - who’s age was 32 years as on 1.12.1987, and not for Smt. Rama. But at the time of solemnization of marriage, which held on 8.5.88, another woman i.e. Smt. Rama took part as bride, personating herself as the said imaginary person. Thus marriage solemnized, by cheating by personation.

3. This fraud /cheating by personation was discovered and came to know the actual age of the Smt. Rama, while she came with her office records for the purpose of joining the Government School, Jamnipali, where she presently posted.

After that, relationship was not cordial and normal matrimonial relationship of husband and wife not existed due to the said cheat by personation.

Her this act falls under 12(1)(c) of The Hindu Marriage Act – which liable to the nulty of the marriage; & Secs. 416, 419 120a &120b of The Indian Penal Code liable for imprisonment for years together. Under the Secs. 120a &120b her brother Mr. Anupom,his wife & sister in law of Smt. Rama (name unknown), is also liable for punishment.

A copy of the official record of respondent showing her date of birth is annexed hereto and marked as (Anx.2).



ANX 1.

Anupam Kumar Dasgupta, (Press Correspondent)

Darogapara, P.O.& Distt. Raigarh, M.P.Pin - 496001.

Respected Sir,

In response to your advertisement in Deshbandhu, News - Paper, It is to inform you, that the bride is my sister and I am in search of a groom for her.

My sister is M.A. (Hindi), B.Ed. and teacher in a Govt. School. Salary in four figure. Age 32 years, Height 5’ whitish colour, healthy homely, courteous and export in house-hold work.

We are from a reputed Vaidya family of Barishal. Our gotra is Shalenkan. We are one brother and three sisters. Two sister married and sister-in-laws are well placed in Barakar and Patna respectively. I am press reporter of the Hindi daily 'Nava Bharat' and English edition 'M.P. Chronicle' our father expired and mother alive.

I inform you the description of my sister and our family. If you are interested for such bride, then,

please let me correspond to the above address and oblige.

Please accept my 'Namshkar' and ‘Sadar Sambha

Your's

(Anupam Kumar Dasgupta)

01.12.87 (English).











DUPLICATE

(1) Name and Surname : Ku. Rama Das Gupta

D/o Late Shri Prafulla Kumar Das Gupta

(2) Caste, religion or race : Bramhin, Hindu

(3) Residence and postal address : C/o Anupam Kumar Dasgupta, Darogapara, Raigarh

(4) Father’s Name, surname and last address : Late Prafulla Kumar Dasgupta, Darogapara, Raigarh

(5) Date of birth by Christian era as nearly as can be ascertained. : 20.12.1950

Twentieth December Ninteen hundred fifty.

(6) Exact height by measurement : 4’ 11’’

(7) Personal marks of identification : Mole bellow the left eye.

(8) Signature of Government servant and dates of each Signature. : (9) Signature and designation of the office or other officer attesting of the above signatures with the attestation.

Sd/-

DISTRICT EDUCATIONAL 0FFICER

RAIGRH DISTRICT

The entries in this page should be renewed or re-attested at least every five. The signatures in cages (8) and (9) Should be dated.

PETITION - TRIAL COURT.

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  ...PETITIONER
VERSUS
SMT RAMA DASGUPTA  ...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’s 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 cannot 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.
It 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 issuelessness.
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.
15. 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.
16. 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.
17. 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.
18. 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, against 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.
19. 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:-
(ii) Chairman-cum-Managing Director
(iii) 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.
20. 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.
21. 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
22. 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.
23. 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.
24. 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
(i) 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.
25. 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.
26. 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.
27. 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.
28. Deleted by order of Trial court.
29. 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.
30. 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.
31. That the petitioner is not made in collusion with the respondent.
32. 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.
33. 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.
34. Prescribed court fee affixed with the petition.
35. It is prayed that, a decree for divorce be passed considering the above mentioned grounds, in the interest of justice.
Sd/-
(Petitioner)
Dated 24.1.2000
Bilaspur, M.P.

WRITTEN STATEMENT.

N.A.

WITNESS.

WITNESS


ANNEXURE A-9 (COLLY)

Deposition of Witness No.1 for Plaintiff. Deposition taken on 14.9.2004. Witness’s apparent age 69 years States on affirmation my name is Karobi Gupta.

1. Plaintiff’s maternal uncle and father attended the marriage. Plaintiff is my son, respondent is my daughter-in-law. Both Plaintiff’s father and uncle expired. Respondent’s elder brother Anupam Dasgupta sent an inland letter to my husband where he mentioned that the age of respondent is 32 years. The said letter written prior to the marriage. The letter in question, written two months before the marriage. Even after the marriage, respondent’s brother had made oral statement before me & my brother that the age of Rama was 32 years.

2. I was with plaintiff at Jamnipali in October 1993, the respondent was also residing at Jamnipali with plaintiff. At that point of time, respondent stated me that, she is not having child due to plaintiff.

3. Normally among the Bengali Hindus, the age of husband is more than his wife in a marriage. During the course of my residing at Jamnipali I observed that, respondent quarrel omwith plaintiff and plaintiff used to go out from the house.

Cross examination by Shri V.K. Gupta, advocate on behalf of the respondent.

4. The Inland letter which I had stated, is attached alongwith the petition or not, is not known to me because letter sent to my husband. It is not correct that no such letter has been written, therefore it is not produced in this case.

5. It is wrong to say that at the time of my residing at Jamlipali respondent never told me that, she is not having child due to plaintiff. It is wrong to say that plaintiff gone through the second marriage again, and specifically for that reason he quarrels with the respondent for obtaining the divorce. I am unable to say anything about the matter that whether respondent wants to reside with plaintiff and plaintiff does not want it, because myself did not reside with them.

Statement was read over to the witness and she admitted it to be correct.

Sd/-(Prabhat Shastri); 5th Additional District Judge; Bilaspur, Chhattisgarh; 16.11.2004

Deposition of Witness No.2 for Plaintiff. Deposition taken on 14.9.2004. Witness’s apparent age 43 years States on affirmation my name is Meghdeep Gupta.

1. I know both plaintiff and respondent. Both are husband and wife. Plaintiff is my elder brother. My father and maternal uncle participated in the marriage. My father told on returning from marriage that the age of the respondent is 32 years. It was informed by the respondent’s elder brother Anup, prior to the marriage by writing an Inland letter to my father that the age of respondent is 32 years and I saw that inland letter. It is true that among the Bengali Hindus, the age of husband should be more and the age of wife should be less.

Cross examination by Shri V.K. Gupta, advocate on behalf of the respondent.

2. I am not aware that whather the said inland letter was produced at the court or not. It is wrong to say that no inland letter wrote and ‘am telling lie. It is wrong to say that plaintiff is my brother and due to that today I am making these false statements.

Statement was read over to the witness and he admitted it to be correct.

Sd/-(Prabhat Shastri); 5th Additional District Judge; Bilaspur, Chhattisgarh; 16.11.2004



Witness No. 3 for Petitioner deposition taken n 14.09.2004 day of witness apparent age 44 years states on affirmation,. My name is S Vedraman

1 I know the petitioner and respondent. They are husband and wife. I know the petitioner for last 19 years. Approximately about 10 years back, petitioner sought shelter to me for residential purpose. He needs it as he had to stay outside from his residence due to family reasons. He had not stated the problem in detail. I accommodated him, at the place of my friend Murgan. Petitioner remained there about 10- 15 days. Few days after, my friend expressed his inability to keep the petitioner due to Murugan’s personal problem. My friend Murgan and petitioner both stated this fact that while petitioner was residing at the place of Murgan then respondent had also obstructed there. Murgan had refused to keep the petitioner with him, for that reason.

Cross examination by Mr. V. K. Gupta Advocate of respondent.

2. I do not know when the marriage performed between the petitioner and respondent. This statement not true that petitioner always quarrel after taking liquor. I am not aware of this fact that whether petitioner has another wife or not and for that reason he does not want to keep the respondent with him. I do not have any knowledge of this fact that whether petitioner asks the respondent to go out from his house and when she did not go, then petitioner left the house. I don’t have much more friendship with the petitioner, and we meet at the office only. This statement is not true that petitioner never approached me for shelter. It is untrue that my friend Murgan also never stated me about the disputes and I am stating all these things today for the sake of friendship with the petitioner. It is a correct statement that an employee of NTPC may be allotted quarter. I am not aware of the fact that where the petitioner is residing now a days. Petitioner has allotted a NTPC quarter. It takes five minutes to go to petitioner’s place by scooter from my house. I do not know who resides in that house. I have no knowledge about this fact that respondent is residing at that quarter or not. I do not have any knowledge of this fact that, petitioner willingly left away from the house or not. I do not have any knowledge about this fact that, whether petitioner resides with the other wife in other house leaving his allotted quarter. It is wrong to say that, as petitioner is my friend therefore today I am making these false statements.

Statement was read over to the witness and has admitted to be correct.

Sd/- illegible

Prabhat Shastri; 5th Addl. District Judge; Bilaspur ( C. G)



Witness No. 4 for Petitioner deposition taken on 14.09.2004 day of witness apparent age 39 years states on affirmation, my name is Samita Haldar

1. I know the petitioner and respondent. Both are husband wife. My marriage was solemnized with Shri S.k. Roy and I obtain divorce in the year 1998. No marriage solemnized between me and the petitioner. In genera, the age of the husband is more, and age of the wife is less.

CROSS EXAMINATION BY SHRI V. K. GUPTA ADVOCATE FOR RESPONDENT.

2. My temperament was not matching with my husband therefore the divorce took place. My divorce was finalized from Kanker Court. I know the petitioner since 1997. I was in service at Banki, at that time. My husband was doing service at Basatar at that time.

3 At present Petitioner resides in Banki Mogra. Petitioner used to visit my place till 1998 now it has been stopped. It is wrong to say that petitioner visits at my place and I move with him. It is correct that today I have come on being called by the petitioner. I have a daughter who’s age is six years.

Statement was read over to the witness and has admitted to be correct.

Sd/- illegible

Prabhat Shastri; 5th Addl. District Judge; Bilaspur ( C. G)



Witness No.5 for Petitioner deposition taken the 14.09.2004 day of witnes’s apparent age 50 years states on affirmation my name is Arup Kumar Gupta

1. I advertised for my marriage. In reply to that, on behalf of Rama Dasgupta her elder brother Mr. AnupDas Gupta and his wife sent a reply, where they stated that, the age of Rama Das Gupta is 32 years. The letter was that of 1.12.1987. Photocopy of the said letter has already been produced. I have brought original today which is Ext. P-1 its photocopy is Ext. P-1/C. But as per her office record, her age was 37 years at the time of writing of letter Ext. P-1 from the date of birth 20.12.1950 mentioned in the govt. record of the respondent and this fact was concealed.

2. After knowing this fact, I told the respondent to leave separately from my life but respondent kept on saying and did not go. Thereafter my mother had come to my

place in Jamanipali in October 1993. Respondent had told me impotent in presence of my mother.

Thereafter I had filed an application for divorce in the year 2000. That was on different ground filed on the basis of conversion of the religion.

3 Respondent considers herself as married, only on the basis of solemnization. She does not perform the duty of a wife. Cruelty of respondent started since beginning. She married me by saying that she is a woman of 32 years whereas that woman was 37 years old. My mental condition is not such that, I can accept a wife more than my age. I poseses some Indra vikas patra, amount about Rs. 50,000/- which kept by respondent without my knowledge. She kept it against my wishes, which was a torture against me.

4 Apart from the letter ext. P-1 one more letter had been sent to my father in which the age of the respondent was stated as 32 years which not enclosed it in this petition. The behavior of the respondent gradually changes and she started opposing every word of mine. Due to this reason I feel very difficult to live with her then I filed an application on 05.12.2004 in the court of Ivth Addl. Distt. Judge. No action was taken on the application because of not being in the prescribed form. It happened as because I don’t have the knowledge of

law. Respondent’s brother threatened me to kill, on 28.12.1994 and I had lodged the report in Darri police station. I have the carbon copy of it. Carbon copy is exhibit P-2 and its photocopy is Ext. P-2/C.

5. On 24.01.1995 night, I hear, respondent shouting ‘fire,fire’. I and respondent used to sleep separately. I rushed there and found that, respondent was sitting on the cot and fire caught due to throw the quilt over the heater by herself. Which also I reported. Carbon copy is Exhibit P-3 and its photocopy is Ext. P-3/c. After this information police had stated it to be cognizable offence and a report handed over to me, which marked as Ext. P-4 on it. I have brought the carbon copy. Photocopy is already on record which is Ext. P-4/C. I already produced the complaint alongwith the affidavit in the court of IV th Addl. District Judge. After this incident, I felt my life is in danger. On 30.01.2005, when I left the house for preparing to reside at some other place then respondent snatched all my articles and did not allow me to go. At that time, I spent my two nights at Jamalipali bus Stand. Thereafter, I am moving here and there, till today. During this period, I request for a shelter to my friend Vedraman, and he arranged my staying along with Murgan but there also respondent went and started making my life, in hale.

6. Once I had gone to duty locking my quarter then respondent broke the lock with the help of few people and entered into my quarter. Respondent forcibly residing into my quarter which allotted to me by NTPC and even after repeated request she did not vacate it. Respondent and respondent’s brother made false complaints before the management of the company and I had given its reply to the company also. The original copy of the complaint with me and I have not brought it today. No marriage solemnized between me & Samita Haldar who has come today as witness, but we had intimate relationship and have a girl child also who resides with Samita. Due to the false complaints made by respondent, to my company and my friends, which is mental torture to me. Due to the aforementioned incidents respondent committed mental cruelty with me. Due to the above reasons, it is not possible to live together and this situation created by respondent herself deliberately, with intention to live separately.

CROSS EXAMINATION BY SHRI V. K. GUPTA ADVOCATE

FOR RESPONDENT.

7. Samita Haldar known to me since 1998. It is not true

that I know her 1992-93. I don’t like to reply this question that, the reason of divorce of Samita Haldar &

her husband because this question not related with this case. It is not true that the husband of Samita quarrel with me, saying that, I kept his wife. It is also not true that, after being established the relationship with Samita I have started ousting the respondent from my house. It is not true that when respondent denied to leave my house then I made false complaint at Darri Police station. It is not true that respondent did not make an incident of catching fire and I had made false complaint. The child who was with Samita Haldar is six years old. It is not true that she was born in 1997. I do not remember her date of birth. It is not true that I want to oust the respondent from my house with view to keep Sunita.

8. I did not produce the copy of the printed advertisement of my marriage. I could not remember today what I written in the advertisement and what kind of wife I wanted. It is not true that I never advertised it. I saw respondent at her house. It is true

that I saw respondent before marriage. I consented on marriage with this understanding that the respondent is a girl of 32 years. If she declared herself as 37 years old then I never consented on the marriage. I cannot say anything in this regard that, by look, how much age respondent was. It is not true that the brother of the respondent never stated to my father & maternal uncle that the age of the respondent is 32 years. It is not true that respondent never said to my mother that child is not being born due to me. It is not true that respondent’s brother never wrote the letter of Ext. P-1. It is not true that I never stayed in the house of Murgan.

9 At present I have adopted the Muslim religion. Neither I had made any report to the post office about Indra Vikas Patra and nor I made any report to the police station. It is not true that I want divorce with respondent with a view to make Samita as a wife.

Statement was read over to the witness and has admitted to be correct.

Sd/- illegible

Prabhat Shastri; 5th Addl. District Judge; Bilas Pur ( C. G)



Witness No.1 for non – applicant deposition taken on 09.11.2004. Witnes’s apparent age 53 years states on affirmation my name is Smt. Rama Das Gupta.

1 My marriage solemnized with the applicant Arup Kumar Gupta about 16 years ago in the year 1988. My marriage solemnized at Raigarh. After the marriage, I went to applicant’s house at Calcutta and come back some days after. I remained there approximately 15 days. Thereafter I came back to Jamnipalli at applicant’s quarter where residing after the transfer. That house allotted to applicant. That quarter situated at NTPC Colony and as applicant was employee of NTPC therefore the quarter allotted in the name of applicant.

2. After marriage we resided there as Husband and wife till 1996-97. During that period I faced negligible disputes.

3. In 1993, applicant told me to take loan from my GPF account for constructing a house and on that basis I withdraw a loan of Rs. 50,000/- from my GPF account from the department. Thereafter, applicant pressurized me to deposite the same in his name and started quarreling with me heavily. But I deposited the aforesaid amount in my name in the post office. As because applicant was suffering from Ulcer at that time and I felt there may be a future requirement of money for medicines and treatment so I deposited the aforesaid money in my name in the post office. I did not deposit the aforesaid money in the name of applicant. Due to this reason applicant angered and always beat me and harassed me. Applicant throwed the household items and putted it on fire. One day he locked the house. When applicant asked to open the lock then he told me to get the order from the court thereafter he will open the lock. Then I called two

to four neighbours and stated the incident then my neioghbours took me to General Manager of NTPC, then all these persons made a phonecall to TI of Darri Police station then TI came and broke the lock of my house with the help of neighbourers. Thereafter I were able to entered the house.

4. Our dispute continued. During that period, applicant visited home, time to time for a short period. After 2001, applicant left the house voluntarily. I did not thrown out the applicant from the house. At present applicant resides in Banki Mogara. Now applicant residing in the quarter of the health employee Sunita Haldar who resides at Baki Mogara. Applicant made Sunita Haldar as his wife. It is my belief that when he made Sunita Haldar his wife, from that time he started torturing me. My husband have a child from her. I don’t know the name of the child. Perhaps she studied in the school.

5 At present my husband accepted the Islam religion. My husband accepted the Islam religion probably on 1993 and used the name as Anwar Ali.

6. I want to live with the applicant who is my husband even now but he has left the house on his own.

7. The time when the marriage took place, I told my age etc., to the applicant. I have not married him by fraud.

149

After providing the complete information the marriage was solemnized as per the social rites and rituals in presence of the guardians of both sides and in the presence of the elders of both the parties. Applicant has been putting pressure upon me for divorce since 1993.

CROSS EXAMINATION BY THE APPLICANT HIMSELF.

8. I am still ready to live with the applicant. I want to live with him as because the problem between husband and wife should be solved at home but applicant doesn’t want to solve the problem.

9. As you converted your religion people of my society do not take water from my house and they look at me in a inferior manner. Sometimes you vanished from the home. Sometimes you lock the quarter whose key not available to me. You assaulted in my eyes for which haziness come into my vision and you did not even took me to hospital.

My eyes need to be operated for motiabind, all facilities available at NTPC hospital, still then treatment not available to me, and you are responsible for it. I purchased the medicine, which are, not issued but you have not signed on it till date. I verbally requested the management but they adviced me to bring order from the court. No body is there to look after me.

10. You made Sunita Haldar as your wife and you have a child from her. Due to this reason, now I am living separately. You are harassing me to vacate the house.

Note :-Now the time is 2.5p.m., therefore, the cross examination of the witness is deferred.

Typed on my dictation; R. S. Sharma; District Judge

Oath was administered again to the witness and cross examination was started.

11 When you locked then I did not give the information in writing to G. M. & TI, and you told me to get the order from the court. I gave verbal information to GM and his wife. They informed the police. I did not lodged any report in the police station in regard to, beat done by you. Witness gave a self clarification that as it is an internal matter of home therefore she did not lodged the report.

12 It is true that I went to Calcutta where I received a warm welcome. You were present at the time of reception. You are the person, who took me there. You

told that you will construct a house on the land at Calcutta therefore I drawn the loan of Rs.50,000/- from my PF account. It is wrong to say that you were not being informed. As Rs.50,000/- is insufficient for making a house and on that time you were suffering by Ulcer, Ulcer may turn into Cancer, and your maternal grandfather died into Cancer, that’s why I deposited the said amount into the post-office. It is wrong to say that, you were not able to live in the quarter of NTPC, better to say, your entry and exit was frequent, there. You used to go out of the house for 3-4 days then again you used to come. I am talking about your such type of movement only. It is true that I am claiming to be your wife, because I am your wife. On asking witness after showing the letter ext. P-1 that, whether it has been written by

your sister in law (Bhabhi) then witness stated that she does not know who wrote it. It is true that my sister in law and my brother were involved at the time of my marriage. You told me to leave the quarter, then stated again that, you threatened me to leave.

13 In past, I have hared that you established relationship with a Muslim girl then you told that you have kept Sunita Haldar and there is a daughter from her. You never took me anywhere for honeymoon. It is wrong to say that I forcibly residing at that quarter, but as I am your wife therefore I am residing at that quarter.

14 As you absconded (vanished) from the quarter, that’s why none can see you, therefore the question of witness does noy arise. I did not mention your name as husband in my service record, but the information which I sent time to time, there I mentioned your name as my husband, and it recorded in the school record. Thereafter, witness self explained that, you did not prepare the affidavit in this regard.

15 Most of the works, I did with your permission, and as you told I did the same. Several times I told you, for giving affidavit by which I can enter your name, as husband after me, but you did not affidavit.

16. It is wrong to say that I concealed my age from you. It is also wrong to say that I have committed any fraud. You know about my age since beginning, total record was with you. You saw all the records, you went Gwalior too along with the records, for drawing

money. It is fact that myself and my brother wrote letters to your office. I could not remember for what reason that letter written. But I can tell it, after seeing the letter. I wrote the letter Ext.P-12 and Ext.P-11 written by my brother. I wrote the Letter Ext.P-12 in regard to your criminal activities. It is true that, the allegations which I have leveled against you in that letter, is absolutely truth. Whatever the allegations written in that letter is correct.

17. I marry you, why I will left you only on your say, when you brought me hear after my transfer. I had a cordial relationship with you at the very beginning of the marriage.

18. You had taken the shape of Muslim by increasing your beard and you had kept the room heater in the side near the bed and fire had caught in the quilt by mistake. Then you had taken me to the hospital, I had gone to my duty, then you went away alongwith the medical book and told that I took it for strengthening my case.

19. It is wrong to say that, you left the house in one cloth. It is also wrong to say that, I had forbidden you

to give clothes and books. Neither police came to meet me nor you came with any demand. I lodged report against you in Darri police station but I could not remember when I complained. You have been living with Kept. I lodged a report in regard to keeping a woman by you. You, yourself told me that you married Sunita Haldar that’s why ‘am saying that as I am your legally weded wife and alive therefore you can’t marry any other woman that’s why I told her, your kept. Yes, I told her baby, ‘illegal child’. As because you have Ulcer, you have asthma, therefore I want to serve you, therefore I want to live with you, but my condition is that, that woman Sunita Haldar and her child must not be there. You are my husband; you are doing wrong by not recognizing me as your wife. Why did you change your religion, some reason must be there. It is wrong to say that I had embezzled your Indira Vikas Patra and Kisan Vikas Patra. It is true that I had not initiated the proceedings of the restitution of conjugal rights against you. I sent the copy to all those, whose name mentioned in Ext.P-11 and P-12.

The statement has been read over to the witness who put

his signature after found it correct.

Sd/- Illegible

R.S. Sharma; District Judge Korba(Chhattisgarh);



Deposition of Witness No.2 for Respondent. Deposition taken on 9.11.2004. Witness’s apparent age 42 years States on affirmation my name is Dindyal Agarwal.

1. I know non-applicant Rama Dasgupta and applicant Arup Kumar Gupta. Both parties were residing at Yamuna Vihar Colony. At present non-applicant resides there alone in that quarter. Earlier applicant was also resided at that quarter. I do not know where applicant residing now a days.

2. Initially the relationships were alright. I can’t say what dispute arose later on. Applicant did not use to come in his quarter. I don’t know where applicant was residing and with whom. It is also not known to me whether applicant converted his religion or not. Once applicant locked the quarter then, we about five to seven persons opened the lock.. Thereafter non-applicant started residing in it. Non-applicant resides there alone; applicant does not come to that room.

Cross examination by Arup Kumar Gupta, Applicant himself.

3. we about five to seven persons opened the lock. No higher officials were there, it was a domestic matter. One, Mishraji, S.K.Mishra was one of them who involved, to open the lock, I Can’t remember rest of the names.

The statement has been read over to the witness who put his signature after found it correct.

Sd/- Illegible

R.S. Sharma; District Judge Korba (Chhattisgarh).

// TRUE TRANSLATED COPY //

JUDGEMENT - TRIAL COURT.

ANNEXURE A-12 //True 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 nonapplicant 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 petition

under Section 12 & 13 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 mintenable - It was not disposed of





(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.



SUIT ISSUE NO.4

29. 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.

SUIT ISSUE NO.6

30. 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.



Sd/- Illegible

R.S. Sharma

District Judge

Korba(Chhattisgarh)

/ / TRUE TRANSLATED COPY //