JUDGEMENT - H.C.

JUDGEMENT (H.C.)


HIGH COURT OF CHHATTISGARH AT BILASPUR

F.A. NO. 24 OF 2005

APPELLANT / Original Plaintiff: Arup Kumar Gupta alias Anwar, S/o.Late S.K. Gupta, aged about 51 years Address:- Wireless, Operator, N.T.P.C. K.S.T.P.S. Deptt. I.T. P.O. Jamnipali, Tahsil Katghora Distt. Korba (CG)

Versus

Respondent/ Original Defendant: Smt. Rama Dasgupta, D/o. late P.K. Dasgupta aged about 54 years Address: B-609 Block I Yamuna Vihar, P.O. Jamnipali, Tahsil Katghora Distt. Korba (CG)

____________________________________________

Present :

Appellant in person

Mr. H.S. Patel, Advocate for the respondent_________

JUDGMENT

(Delivered on 22.04.2008)

Dhirendra Mishra, J.

1) This first appeal under Section 28 of the Hindu Marriage Act, 1955 (hereinafter shall be referred as ‘the Act’) is directed against the judgment and decree dated 3.12.2004 passed by the learned District Judge, Korba in Civil Suit No. 37-A/2004 whereby learned District Judge has rejected the application of appellant herein filed under section 12 (1) (c ), 13 (1) (ia) & 13 (1) (ib) of the Act for dissolution of marriage with the respondent herein.

2) Briefly stated facts necessary for disposal of this appeal are that the marriage of the appellant was solemnized with the respondent on 8.5.1988 as per Hindu customs and after marriage they resided together at Jamnipali, District Korba. Appellant has moved an application for divorce under Sections 13 (1) (ia) & 13 (1) (ib) of the Act, which was registered as Civil Suit No. 19-A/93 and the application filed by the appellant was dismissed by the High Court under Order 7 Rule 11 of the CPC. The grounds on which the instant appeal for divorce has been filed are:-

The appellant and the respondent resided together till January, 1995 and thereafter serious disputes arose between them and the respondent forcibly ousted the appellant from his house;

• At the time of marriage, the brother & sister –in-law of the respondent misrepresented that the age of the respondent was 32 years, whereas her death of birth was 20.12.1950 and she was of more age and thus, the consent for marriage of the appellant was procured by practicing fraud by misrepresentation of fact. In Vaishya community of appellant, wife cannot be older to her husband;

• The respondent treated the appellant with cruelty. She called him impotent in the presence of his mother. She wrote letters in the office of the appellant making serious allegations against him which also constitutes mental cruelty. He was forced to leave the house which was allotted to him by his employer. The respondent had set herself on fire and lodged a report in the police and thereafter started blackmailing the appellant.

• Because the cruel treatment of the respondent, the appellant is residing separately for more than two years and therefore also he is entitled for decree of divorce under Section 13 (1) (ib) of the Act;

• The appellant had converted to Muslim religion and because of his religion the respondent neglects him and all these constitute mental cruelty.

3) The respondent in her reply denied the allegation of cruelty and alleged that the appellant himself left the house and he has made false allegations against her. There is no custom in Bengali Vaishya community that the age of the wife cannot be more than the husband. There was no misrepresentation regarding her age. The appellant has illicit relationship with another lady and on account of that the appellant is treating the respondent with physical & mental cruelty as also caused her financial loss and he is depriving her all her conjugal rights. Earlier also the appellant had filed an application for divorce under Sections 13 & 12 (1) of the Act, which was challenged by the respondent by way of revision number 1924/’95 and the High Court of M.P. dismissed the application of the appellant as not maintainable. The appellant has developed illicit relationship with other woman during subsistence of earlier marriage. She never called him impotent. The appellant is creating a situation so that the respondent is compelled to commit suicide.

4) On the basis of the pleadings of the parties, the court below framed various issues and dismissed the application for divorce with a finding that the appellant has failed to prove that the respondent married him by cheating that her age is less than the appellant. He has also failed to prove that she treated him with cruelty or she is residing separately without any just and valid reason for more than two years before the date of filing application and the respondent has also failed to prove that the appellant had accepted illicit relationship during subsistence of his marriage with the respondent and gave birth to a child through that lady.

5) The appellant impugned the judgment of the court below on the grounds that the court below deliberately ignored the communication of the brother of the respondent whereby age of the respondent was mentioned as 32 years, though from the documentary evidence it is established that her age was 37 years. The court below was not justified in rejecting the ground of misrepresentation and fraud solely on the basis of limitation, as the delay was already condoned and on issue was framed pertaining to the ground under Section 12 (1) (c ) of the Act. The Court below also ignored the fact that the respondent did not raise any objection in her written statement that the application for divorce on the ground of misrepresentation and fraud is time barred. It was further argued that the accommodation was allotted to the appellant by his employer and he is paying the rent of that accommodation. They both resided under the same roof from 1988 to 1995, however, they did not have spousal relationship and the finding in this regard of the court below that they lived together upto 1995 is erroneous. Learned court below refused the prayer of the appellant to examine sister-in-law of the respondent as an additional witness.

6) On the other hand, learned counsel for the respondent has supported the impugned judgment.

7) The first ground taken by the appellant that the marriage was solemnized by obtaining the consent of the appellant by practicing fraud as the age of the respondent was misrepresented as 32 years, whereas, her actual age was 37 yeas is concerned, the appellant has deposed that he had given advertisement for his marriage, the brother of respondent namely Anupam Das Gupta and his wife respondent to the advertisement vide their letter dated 11.12.1987 and informed that respondent is only 32 years of age, whereas, her date of birth, as mentioned in the government record, is 20.12.1950 and thus, her age was in fact 37 years and this fact was deliberately suppressed. The appellant’s witnesses namely Smt. Karobi Gupta and Meghdeep Gupta have also deposed that Anupam Das Gupta through his letter had informed the age of the respondent as 32 years. There is evidence available on record that before consenting to marry, appellant had met the respondent and only after meeting her, marriage was solemnized. It is not in dispute that the marriage was solemnized in the month of May, 1988. It is also not in dispute that the parties resided together till January, 1995 in the same accommodation, as averred in the application for divorce. The appellant has not disclosed as to when he discovered the fact regarding actual age of his wife. Respondent has also stated in her cross-examination that the appellant knew about her age since beginning, as he was in possession of all her documents. In these circumstances, the court below has rightly held that the application for divorce on the grounds enumerated in Section 12 (1) (c) of the Act has been preferred beyond the period of limitation prescribed under Section 12 (2) (a) of the Act.

8) So far as the divorce on the ground of cruelty is concerned, the appellant has claimed that the respondent called him impotent in presence of his mother, whereas, his mother Smt. Karobi Gupta has only stated that the respondent told her that because of the appellant she is not able to give birth to the child and she does not support the contention of the appellant that the respondent called him impotent in the presence of her mother.

9) The court below after marshalling the oral evidence available on the record in detail has arrived at the conclusion that the appellant has failed to prove that the respondent forced him to leave the house or that she set herself on fire, lodge the report against him in the police and tried to blackmail him for the above incident.

10) The appellant has also taken a ground that the respondent made false allegation in her written statement that the appellant has illicit relationship with another lady and he has given birth to a child through her and this allegation constitutes mental cruelty. The court below has also considered the above argument in detail. The respondent wife has stated in her deposition that the appellant has converted to Muslim religion and changed his name. He has left the house in the year 2001 and started residing with some Sunita Haldhar and he has a child through her. In the cross-examination also she has expressed her willingness to live with the appellant provide he stopped living with said Sunita Haldhar and the child through her. Though the appellant has denied the above fact, however, the court below considering the variance in the statement of Sunita Haldhar and the appellant has held that the version of the respondent is trustworthy.

11) The reasons assigned by the court below are based on the appreciation of evidence available on record. The court below considering the fact that the parties were married with each other as per Hindu customs and the appellant had converted to Muslim religion, has held that the respondent has a right to live separately. The court below also house, which was allotted to the appellant, has reached to the conclusion that it is the appellant who has left the company of the respondent.

12) After going through the evidence available on record, I am of the considered opinion that the trial court, after considering overall evidence available on record has rightly held that the appellant has failed to prove the grounds taken by him in his application for divorce. There is no illegality or infirmity in the impugned judgment.

13) In the result the appeal being devoid of substance deserves to be dismissed and the same is hereby dismissed. No order as to costs.

Sd/-

Dhirendra Mishra

Judge