PETITION - HC

ANNEXURE A-13

IN THE HIGH COURT OF JUDICATURE AT BILASPUR (C.G)

F.A. NO. 24 OF 2005

Arup Kumar Gutpa....APPELLANT/ORIGINAL PLAINTIFF

VERSUS

Smt Rama Dasgupta, .... RESPONDENT/ORIGINAL DEFENDANT

FIRST APPEAL UNDER SECTION 28 OF THE HINDU MARRIAGE ACT

Being dissatisfied and aggrieved by the Judgment order dated 09.11.2004, 17.11.2004 and 03.12.2004, by the Hon’ble Court of D.J. Korba this appellant prefer the appeal on the following facts and grounds:-

1.Appellant filed a civil suit no. 37-A/2004 (former No. 13-A/2000) on 25.01.2000 under Section 12(1)(c), 13(1) (ia) & (ib) of the Hindu Marriage Act, 1955, in the court of Hon’ble Vth ADJ of the Court of D.J. Bilaspur, which transferred from Bilaspur to Korba, at the Court of Hon’ble D.J Korba on 1.10.2004. The petition rejected by the Hon’ble court of D.J.Korba on 03.12.2004.

(a) The certified copy of the judgment order dated 03.12.2004, against which appeal lies annexed as Annexure S-1.

(b) Copy of the petition, C.S.NO. 37-A/2004, annexed as Annexure S-2.

(c) Copy of written statement submitted by respondent, annexed as Annexure S-3.

(d) Copy of the witnesses of (i) A.K.Gipta (petitioner); (ii) Smt. K. Gupta; (iii) Shri M. Gupta; (iv) Shri S.Vedraman; (v) Shamita Haldar; (vi) Smt Rama Dasgupta (respondent): (vii) Shri D.D. Agrawal, annexed as Annexure S-4.

(e) Petitioner paid the process for call respondent’s sister in law as witness with due permission of the competent authority on 02.08.2004 and submitted a petition, dated 17.11.2004 for calling the said sister in law as witness and additional witness of petitioner to reply the new matter and allegations raised at the time of witness of respondent.

Copy of process dated 02.08.2004 and the petition dated 17.1.2004 annexed as Annexure S-5.

2. Facts in brief

(i) Respondent solemnized marriage by cheating by personation with criminal conspiracy with petitioner. She frauded regarding her age. Due to cheating, it is not she, for whom the proposal of marriage was sent. She personated the imaginary person for whom offer was sent, vide Annexure P-1 (Page----). Anneuxre-P-1 consist of 3 pages, First page shows the letter of marriage proposal, which written in Bengali and where the age of the proposed bride was stated as 32 years. Second page is it’s English translation and third page shows the actual age of respondent as per her office record, which shows 37 years.

(ii) Annexure P-1 written by, brother, and his wife of respondent, therefore, the said wife, i.e. sister in law of respondent called on as witness on 02.08.2004 vide Annexure S-5 (page----), with due permission of competent authority. But she did not appear. On 14.09.2004, Hon’ble Vth A.D.J. of Bilaspur closed the witness chapter of petitioner, without the consent of petitioner.

(a) On her witness, respondent admitted that her sister in law and brother was deeply involved in the process of marriage (Page----).

(b) On her witness, respondent refuses to recognize any involvement of Annexure P-1, on her marriage. According to her, she does not know who wrote the letter dated 01.12.1987, of Annexure P-1, which bears the false statement of her age. Even she refuses to recognize/ confirm the handwriting of the said letter (Page----).

(c) In fact this will criminate respondent & her sister in law, which is a punishable offence under I.P.C. from which they are trying to get escaped.

(d) Petitioner attracted the attention of Hon’ble D.J., Korba for witness of sister in law, which is extremely necessary, a need of the hour, and without which, the very particular fact that, the letter dated 01.12.1987 of Annexure P-1 cannot be proved and a reasonable and justified conclusion can not be drawn. Also process was paid on 02.08.2004 for this purpose. Against this oral submission, Hon’ble D.J. Korba ruling that the scope of taking witness of petitioner’s side was over and completed. Therefore he will be deprived from it.

(e) On 17.11.2004 petitioner submitted in writing that, for the sake of justice, it is extremely necessary to call the said sister in law as witness and allow petitioner, to give additional witness for the purpose of reply to new matters and the charges imposed by respondent over petitioner, without which, the case can not be decided, on merit and according to law, but the learned judge refused it (Page---)

(f) After solemnization of marriage, respondent did a series of cruelty and create cause of dissertation (Page-). Though all are proved but they are declared disproved/ not proved by the Hon’ble D.J. of Korba showing some lame excuse and this or that reason, whimsically.

2. In his judgment, following injustices done an error committed, by the Hon’ble D.J. Korba.

(i) In point no. 10 of the judgment order, learned judge raised the question that it has to be seen that whether respondent behaved fraudulently to communicate the material factor ‘age’ or not (Annexure S-1, Page---), and in point no 11 his decision / conclusion in this regard is thus, that petitioner had enough scope to know the whereabouts of respondent, till then he agreed for marriage, under this circumstances, it is disagreeable/ disbelieavable that respondent behaved fraudulently with petitioner, (Annexure S-1, Page-), Appellant most humbly submit that, the conclusion is materially erroneous due to following reasons.

(a) On what ground, a gentleman will disbelieve another gentleman, when the party given the said data (regarding age) in writing (Annexure P-1).

(b) Learned judge deliberately overlook the written communication, regarding age and its evidence value (Annexure P-1).

(c) Firstly, create obstacle to take the witness of sister in law of respondent and thereafter declared that P-1 is not proved (Annexure S-5 & S-1, Page---).

(d) Witness is witness only. It can not be dived into, witness of petitioner or respondent. A party call/bring witness for the interest of justice only. There is no legal provision to stop it ignoring the interest of justice.

(e) He neither considers nor given any weight age to the witness of petitioner, Smt K.Gupta & Shri M. Gupta who are telling that the respondent & her party lied on that time Annexure S-4, Page-).

(f) Learned judge only gave weightage to the witness of respondent, who only orally claim and do not submit any written evidence in her support. (Annexure S-4, Page--).

3(i) The first question of issue declared disproved/not proved also on the ground that the petition presented after one year of marriage, and when the fraud was discovered under section 12(2)(a) of the Hindu Marriage Act. Therefore, it is time barred and attracts limitation. In this regard, the humble submission is that:-

(a) The Hon’ble Vth A.D.J. Bilaspur already condones the delay. For that reason, under 12 (1) (c) accepted and framed as an issue.

(a) Prayer for condonation of delay in this regard, already is there in the petition of trial court in point no. 5 & 31 of annexure S-2 (page--).

(b) The specific time when the fraud was discovered, mentioned in point no.5 of the petition of trial court, annexure S-2 (page--).

(c) Respondent did not raise any question regarding this delay in her W.S. or presented any communication before the court, latter on, as because delay was already condoned considering the genuine causes shown in the plaint.

(d) In a High Court decision, delay in condonable even after 12 years (citation will be given latter on).

(e) It is also overlook by the Learned Judge that the quarter where petitioner and respondent raised that quarter allotted to the petitioner from his office and for which he is still paying rent. If one has to go, then it should be the respondent, who unauthorized and unwontedly residing there, Several times, she refused to leave the quarter, verbally and in writing, even in her witness, she also expressed herself in same manner (AnnexureS-4, Page--). By this manner she behaved since the fraud exposed, and she was requested to leave the quarter of petitioner. (Annexure S-2). It clears her nature and character. Therefore, it cannot be said that, petitioner and respondent lived together since 1988 to 1995. A forced occupation cannot establish the spousal relationship. On the contrary it is crystal clear proves of cruelty and dissertation (Annexure S-2).

(f) In point no. 14 of Annexure S-1, learned judge use a particular portion of point 3 of Annexure S-2, of the petition and have leave the rest portion, as it opposes the fact he desires to establish. According to point 3 of Annexure S-2, though petitioner and respondent resided together till the end of January, since then respondent forced fully occupy the quarter.

(g) Misrepresentation as to the age and obtaining consent on it - is a fraud. Concealment of the fact that the wife is elder than her husband is a fraud. “While wife shown younger than husband”. Such things happened only, to obtain consent fraudulently. It is known to the party, fraud, that if they communicate actual age, the marriage negotiation will be stopped there. In Bengali Baidya community and in general the other community also, -wife is being chosen from the group of younger age of the mail. It is a long lasting custom in India and Bengali Baidya community. Witness of petitioner, Smt K. Gupta, Shri M. Gupta, Mr. S. Vedraman and Shamita Haldar reflex it (Annexure-S-4, Page--). As a matter of fact, when in negotiated marriage, such marriage between an elder wife and younger husband occurs, court can presume the existence of fraud. The onus then lies on the elder wife to prove, that there was no fraud or concealment. Non disclosure of the material, factor ‘age’ vitiates consent for marriage and amounts to fraud.

Citation:- (1) Babui Panmato Kuer Vs. Ram Agya Singh, AIR 1968 Pat 190; (2) Som Dutt Vs. Raj Kumari AIR 1986 P & H 191; (3) P.J. More Vs. Valsa AIR 1992 Ker 176.

(i) In a marriage, where fraud exists, there if any party has to suffer then the party frauded should suffer, not the party, who is victim of fraud.

(ii) (a) According to Supreme Court decision, a marriage is legally valid only after the marriage solemnized in due form. Citation:- (1) Bhaurao Shankar Lokhandev Vs. State of Maharasthra AIR 1965 S.C 1584 (2) Kunwal Ram Vs. Himachal Pradesh Administration AIR 1966 S.C 614.

(b) According to the Art. 16 (2) of the universal declaration of Human rights, 1984 and Art. 23(3) of the International Covent on Civil and Political Rights, 1966, - No. marriage shall be entered into, without the free and full consent of the intending spouses. India is signatory of the International Covent on Civil and Political Rights, 1966. According to Sec. 12 (1) (c) of the Hindu Marriage Act, 1955, solemnization under fraud, void able

and According to Sec. 5(ii)(a) of the Hindu Marriage Act, at the time of marriage, neither party is incapable of giving a valid consent to it, without which marriage is void. Therefore, it is fundamental right, a personal liberty under Art. 21 of The Constitution of India. A legally valid marriage will be a marriage solemnized in due form with full and free consent of the intending spouses, without which, it is a invalid marriage, though solemnization held in due form.



(b) Sec. 29 (3) of the Limitation Act, 1963 opposes the provision of Sec. 12 (2) (a) of the Hindu Marriage Act.

(c) In a marriage, the legal value of solemnization is that, that it is a declaration of the intending spouse that they have free and full consent on marriage.

(d) A fraud cannot be legalizing under the shelter of the Sec. 12 (2) (a) of the Hindu Marriage Act.

(e) Consent for marriage is core material of a marriage. To give this consent is one’s personal liberty under Art. 21 of the Constitution of India. It cannot be obtained be fraud.

(f) An adult person has always a right to live with other adult person, out of matrimonial bonding. Therefore, it cannot be said that as they were living under the same roof, therefore, they were living as husband and wife (page--). Very particularly, in the background of long quarrel exist between them, which agreed by both the parties, and one living with forced occupation and against the will of the legal occupant.

(g) If solemnization obtained by force or fraud it should be void immediately. It is always open before the parties that they solemnized their marriage further with free and full consent.

(h) The act 12 (1) (a) violates the fundamental right of one by making it void able instead of void one, and 12 (2) (a) makes it more horrible ignoring the right of an individual. The tactful approach of respondent clearly indicate that, one can easily make a fraud, legalize under the shelter of void able marriage and the provision of 12 (2) (a) of the Hindu Marriage Act.

The provision of ‘force or fraud’ on marriage, should be a void one, instead of void able one and Sec. 12 (2) (a) of the Hindu Marriage Act should be abolished. The legacy of the said act threatened one’s personal liberty on marriage, under Art.21 of The Constitution of India. It is a substantial question of law, which demands a careful examination.

3.(iv) Regarding the issue of 2,3, & 5 following is the submission of appellant. The judgment order is erroneous due to the following reasons:-

(a) Respondent framed two new story that, appellant brought his divorce petition.

(1)Due to the relationship of him with Shamita Haldar

&

(2)As she did not give Rs. 50,000/- that’s why divorce petition filed.(page-).

Both are imaginary & vague. Firstly, Divorce petition filed long before the said relationship come into exist. Secondly, If petitioner is a greedy for money, then it will be natural that he will not leave the respondent only for a some of Rs. 50,000/-only,. Where respondent’s yearly income much more, than it. Where respondent admits in her written statement

that she wish to stay & serve petitioner & want to make relationship with him and she cares the will of petitioner Form petitioner’s witness & witness of Shamita Haldar it is clear that the relationship between them come into exist only on the year of 1997/98. But the relationship between petitioner & respondent destroyed just after the fraud exposed, and day by day the gap between them increased, Hon’ble D.J. did not count these facts in his judgment order and did not allow taking witness by petitioner on new matters, issues and charges raised by respondent.

(b) In point no. 27 of Annexure S-1, learned judge comments that the petitioner did not oppose this fact. Firstly, he did not allow taking witness on new facts, issues and charges raised by respondent in her witness, Secondly he did not realize the matter also. As the petitioner is the legal occupant, therefore, he locked his quarter and advised respondent to bring the courts order if she wish to stay there, Hence it is remarkable that after the incidences of fire, it was not safe for petitioner to stay with respondents.

Under this circumstances respondent break the lock with the help of some anti socials.

(c) In point No. 17 & 20 of Annexure S-1 learned judge observed that, respondent reported the fact of fire, but it is untrue petitioner reported it to police. Concerned evidences also not taken into account and petitioner were purposely not allowed to answer the new facts, issues & charges imposed by the respondent on her witness.

(d) In point no. 18 of Annexure S-1 learned judge make a story in favor of respondent that it might be that the said mother in law asked respondent about her issueless ness, and on that time respondent simply said that due to petitioner he is issueless. The fact is somewhat different. In her witness, Smt K. Gupta told that - in her presence, respondent told the said abuse i.e. ‘Napunsak’ to petitioner. The court of Vth ADJ Bilaspur noted it in a gentle manner. Due to that, the word is drifted from its original shape. Petitioner did not took objection as it is one lady, who told about his son’s sex oriented abusement. In her written statements and witness, respondent expressed this view that petitioner responsible for her issueless ness. It exists in writing. It is a separate matter that why a couple is issueless ness but responsibility thrown over the petitioner by respondent is completely a separate matter. It is obviously a treatment with cruelty to petitioner by respondent and it is sorrowful that though the learned judge noticed it but failed to realize the proper significance of it and make a separate story that perhaps it might be happen which for from the witness and evidence.

(e) In point no. 19, learned judge try to find out facts of cruelty & dissertation from the witness of Shri Vedraman but he failed to overlook the point that the petitioner requested for shelter due to family reason. He provided it through his friend. But respondent disturbed his friend for that reason, which was reported to him by his friend and petitioner both. He repeated the same in cross- examination also. Firstly respondent displaced petitioner from his own quarter thereafter she displaced petitioner from another shelter which petitioner got from a different source. It is a clear treatment with cruelty by respondents to petitioner, which learned judge simply overlook.

In point’s no. 21,22,23,24 & 25 of Annexure S-1 following complain of petition judged:-Respondent disrespect petitioner’s religion, Islam, make false defamatory complaints allegations without any proof, to petitioners employer & general public where petitioner has no reach; try to make petitioner jobless; & hited the girl child of petitioner publicly. Learned judge carefully by pass the witness and evidence in this regards. In her witness respondent boldly told that, - she did all these. All these acts are severe treatment of cruelty to petitioner by respondent and do not require any further explanation. If a person have disrespect to the religion of the other spouse; hit the girl child for her birth and write false complains to superior of petitioner and general public against the petitioner it is absolutely a treatment with cruelty and cause of dissertation.

No citation can oppose it.

(f) In point no. 26 of Annexure S-1, learned judge commented that thus respondent gets the right of living separately. Petitioner has no objection about it, but that does not mean that respondent have any right to occupy, petitioner’s office quarter. Till today she did not present any petition against petition for separation, under such condition, she has no such legal right.

(g) In point 28 of Annexure S-1, learned judge taken only the oral witness of respondent which are false statement and try to prove that there is no cruelty & dissertation. He simply by passes the witness & evidence available in petition, even he did not taken it into account and use the witness in broken shape. Therefore, the judgment order requires reversal.

4. On Limitation:- The judgment order under appeal dated on 03.12.2004. Petitioner applied for certified copy on 06.12.2004. He was called on 09.12.2004. On that day, it was not ready and the next date given 13.12.2004. Certified judgment order delivered on 13.12.2004. Therefore, the limit of 30 days is 09.01.2005. As it is Sunday, the appeal submitted on 10.01.2005. Appellant humbly submits that, therefore, the appeal submitted within the limitation.

GROUNDS

a. The case not decided, (a) on merit; & (b) according to law. The judgment order dated 03.12.2004 passed by Hon’ble D.J. of Korba is bad in law and contrary to the settled law of the land.

b. Hon’ble D.J. Korba failed to interpret and appreciate the provisions of Section 12 (1) (c); 12 (2) (a); 13 (1) (ia) & 13 (1) (ib) of the Hindu Marriage Act, 1955 and did not scrutinize the real meaning and intention of the legislature.

c. To determine a relationship whether matrimonial or not is a mixed question of fact & law. Alone fact or law cannot determine it.



d. The purpose of matrimonial relationship is to enjoy the life, if there is a failure, and then it can not be established, by ruling or law.

e. The basic intention and the total intention as a whole, of The Hindu Marriage Act are, to provide a matrimonial life. If there is a failure, the said relationship should be rejected otherwise it will go against the intention of the legislation.

f. A party, who has cheated another of his rightful claims, can not be allowed to deprive further from his right.

g. Life and liberty under the Article 21 of the Constitution of India directly related with matrimonial life. One can not be deprived from it by a tricky way.

h. Through the petition is against respondent by petitioner, but, Hon’ble D.J. Korba allowed respondent to record a lot of complains against petitioner and deprive petitioner from his legitimate claims.

i. A complain can not be the reply/answer of a complain.

j. Where only two persons are staying in a deserted manner, learned judge demand their, additional witness and ignore the evidences available

k. Where petitioner’s evidence and witness rejected without showing any cause there respondent’s oral witness accepted as a concrete witness and evidence.

l. Witness of petitioner and portion of the plaint use by the trial court in a broken shape and tried to prove that petitioner or failed to provide witness.

m. Serious charges of cruelty and cause of dissertation ignored and overlooked.

n. The judgment order is erroneous.

o. The learned D.J. deprived petitioner from taking the witness of the sister in law of respondent; petitioner was also not allowed to give additional witness and produce other witness and evidence on the new facts, issues and charges raised and imposed by respondent on her witness- by rejecting the written petition of petitioner (S-5).

p. Hon’ble D.J. Korba, carefully avoided the favorable points of petitioner and highlighted the negative points. On the contrary, highlighted favorable points of respondent and ignore the negative side of her witness and evidence produced.

q. Hon’ble justice, avoid, by pass; and suppress the strong evidences of petitioner and highlighted and realy weak and false witness of respondent.

INTERIM RELIEF PRAYED FOR:-

(1) The Hon’ble D.J. Korba may please be directed (a) to call the sister in law of respondent as witness (b) allow appellant to give additional witness and submit evidence on the new matters, allegations and issues raised by the respondent in her witness.

(2) Stay on execution of the decree on C.S No. 37-A/2004 dated o3.12.2004.

(3) May kindly order to vacate the unauthorized occupation by respondent to petitioner’s office quarter.

PRAYER

(1) Looking to the facts and circumstances of the case the Hon’ble High Court may please allow the instant appeal and set aside the order dated 03.12.2004 passed by the Hon’ble D.J. Korba, Bilaspur in C.S. No. 37-A/2004 for ends of justice.

(2) The Hon’ble D.J. Korba may please be directed (a) to call the sister in law of respondent as witness. (b) Allow appellant to give additional witness and submit evidence on the new matter, allegations and issues raised by the respondent in her witness.

(3) It is prayed that, the said marriage may please be declared null and void.

(4) It is prayed that, a decree of divorce be passed considering the above mentioned grounds, in the interest of justice.

(5) May kindly grant judicial separation under the Hindu Marriage Act.

(6) May kindly order to vacate the unauthorized occupation by respondent to petitioner’s quarter

(7) Stay on execution of the Decree on C.S. No. 37-A/2004 Dated on 03.12.2004

BILASPUR Sd/- APPELLANT DATED 10.1.2005