Allowed

Neeraj Kumar Gupta v. Smt. Kanchan Gupta @ Alka Gupta

Chhattisgarh HC4 Dec 2024FA(MAT)/133/2023

Case brief

AI extract

What is this about?

This family court appeal involved an application for divorce based on cruelty and non-disclosure of prior marriage by the wife. The High Court allowed the appeal, setting aside the lower court's dismissal, finding that the wife's acquittal-related harassment and failure to prove legal divorce from a prior husband constituted sufficient grounds for dissolution.

What did the court decide?

Impugned judgment set aside; marriage dissolved; decree of divorce drawn; no alimony granted.

Neeraj Kumar Gupta Vs Smt. Kanchan Gupta @ Alka… — Matrimonial and Divorce | Chhattisgarh HC (2024)

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2024:CGHC:47885-DB

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Judgment reserved on: 14/11/2024 Judgment delivered on: 05/12/2024

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FA(MAT) No. 133 of 2023

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1 - Neeraj Kumar Gupta, S/o Shri Prem Chandra Gupta, Aged About 31 Years Caste - Vaishya, Occupation - Junior Engineer, C.G.E.B., in Darri, Address - C/o Shri Premchandra Gupta, S/o - Late Mewalal, Occupation - Teacher, R/o - Dabaripara, Baikunthpur, District - Korea, Chhattisgarh.

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... Appellant

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versus

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1 - Smt. Kanchan Gupta @ Alka Gupta, W/o Shri Neeraj Gupta @ Nikki, Aged About 37 Years, Occupation - Housewife, R/o - School Para, Mishra Colony, Baikunthpur, P.S. & Tehsil - Baikunthpur, District - Korea, Chhattisgarh.

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... Respondent

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For Appellant	: Mr. Pawan Shrivastava, Advocate
For Respondent	: Mr. Parag Kotecha, Advocate

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Hon'ble Smt. Justice Rajani Dubey

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Hon’ble Shri Justice Bibhu Datta Guru

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CAV Judgment

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Per Rajani Dubey, Judge

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The matter was listed on admission. However, with the consent of the parties, the matter is heard finally.

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The instant appeal under Section 19 of the Family Court Act has been filed by the appellant being aggrieved by the impugned judgment and decree dated 28.03.2023 (Annexure A/1) passed by Judge, Family Court, Manendragarh Camp, Baikunthpur, District- Korea, (C.G.) in Civil Suit No. 57-A/2019 whereby the application under Section 13 of the Hindu Marriage Act, 1955 filed by the appellant was dismissed.

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The admitted facts of the case are that the parties are husband and wife.

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The appellant/husband filed an application under Section 13 of the Hindu Marriage Act, 1955 before the learned Family Court, Manendragarh (C.G.) for grant of decree of divorce from the respondent/wife on the ground of cruelty and desertion. In the application, it is pleaded that the respondent/defendant filed an application under Section 9 of the Hindu Marriage Act, 1955, on 20.03.2014 stating that the marriage between the parties was performed on 24.03.2012 at Arya Samaj Mandir, Harit Vihar, Delhi, as per Vaidic rituals. After marriage, appellant and the respondent were residing at Junapara, Baikunthpur in a rented accommodation discharging their marital obligations. At the time of marriage, the appellant/plaintiff was unemployed. The marriage of the appellant with respondent was not acceptable to the appellant’s parents and they provoked the appellant to desert the respondent. After appellant got employment in C.G. Vidyut Mandal, Korba in 2013, his father

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pressurised and provoked him to disown marriage. The respondent/defendant went to Darri with her household items to perform her conjugal duties, but the appellant did not met her. When respondent/wife was returning to Baikunthpur then on the way the parents of appellant threatened her for not maintaining a relationship with the appellant. Thereafter, the respondent/wife took a rented house at Baikunthpur and started residing there. When the appellant did not reside with the respondent then she moved an application for restitution of conjugal rights. The appellant denied all the adverse contentions made in the application under Section 9 of Hindu Marriage Act, 1995 file by respondent and stated that, the respondent never resided with the appellant. The respondent married to one namely Rajesh Gupta and from their wedlock, they have 3 children, but she was not having good relation with Rajesh Gupta and their marriage was dissolved on 18.10.2011.

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It has been further replied that the respondent was residing as neighbour of his father and when the dispute arose between the respondent and her husband Rajesh Gupta then being a senior person, the father of the appellant had acted as a mediator and for this reason the respondent had a grudge against his father and appellant and, therefore she filed application for restitution of conjugal rights, which was dismissed. Thereafter, she preferred an appeal before this Court and this Court allowed the said appeal. Against the said appeal, the appellant preferred an SLP before Hon'ble Supreme Court which was dismissed and thereafter, the appellant filed instant application under Section 13 of Hindu Marriage Act, 1955 for grant of decree of divorce on the ground that after marriage, he never resided with the

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respondent. The respondent/wife is living with her ex-husband Rajesh Gupta and children. The respondent, instead of being legally married to the appellant, has obtained the marriage certificate on false and untrue grounds. In the Arya Samaj temple, the respondent declared herself unmarried.

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After 24.03.2012, the respondent/wife started torturing the appellant/husband in many ways and mentally harassed the appellant/husband and his father by registering a false FIR for demand of dowry against them in which they have been acquitted by learned trial court. It is further pleaded that there is no chance of restitution of their conjugal rights and therefore, he filed an application seeking decree of divorce before the concerned family Court.

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In the written statement filed by the respondent/wife, except the admitted facts, she denied all the adverse averments made by the appellant/husband and stated that she was married with the appellant at Arya Samaj Mandir, Harit Vihar, Delhi, as per Vedic rituals. After marriage, she was residing with the appellant and performed her marital obligations. Appellant preferred revision petition before Hon'ble Supreme Court against the order passed by High Court which was dismissed on 30.04.2019. Thereafter, the respondent/wife was in hope that the appellant/husband would live with her and perform his conjugal relations and duties towards her and therefore she did not file Ijrai . It is further contended that she conceived twice but the appellant/husband got the pregnancy aborted. She never resided with her ex-husband after getting divorce. She further contended that no reason was assigned by the appellant for divorce in his application and she wants to live with appellant and perform her conjugal duties. The appellant

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filed the application on the false ground and therefore she prays to dismiss the same.

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Learned family Court by framing issues, recorded the statements of both the parties and after perusing all the documents rejected the application filed by the appellant/husband for dissolution of marriage. Hence, this appeal.

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Learned counsel for the appellant/husband submits that the judgment and decree passed by the learned trial Court is purely erroneous, illegal and contrary to the principles of law and therefore, it is liable to be set aside. The learned trial Court has committed error by rejecting the application under Section 13 of Hindu Marriage Act, 1955 filed by appellant/husband. Learned trial Court did not consider the fact that the appellant/husband never resided with the respondent/wife as husband and wife, because they never married to each other. The learned trial Court has not considered the documents on record showing the name of the husband of respondent/wife is Rajesh Gupta and the same has been supported by the witnesses who are the government employees and they have been prepared voter list and therefore it shows that the respondent/wife is residing continuously with her husband namely Rajesh Gupta even after getting divorce from him.

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Learned trial Court did not consider the fact that the stated marriage of the respondent is based on false affidavit executed by respondent herself in which she declared her marital status as unmarried whereas in her reply as well as statement, it was admitted that she was married to Rajesh Gupta and therefore if any marriage was solemnized between the parties the same is null and void. The appellant/husband completely denied the very existence of marital

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relationship with the respondent/wife as no marriage was ever solemnized between the appellant and the respondent. The learned trial Court has also not considered that the respondent/defendant used to harass the appellant and his family as she lodged false FIR against them for demand of dowry in which the appellant and his father have been acquitted by the concerned trial Court. Thus, it is difficult for the appellant/husband to reside with respondent/wife. The learned trial Court did not appreciate the oral and documentary evidence properly. Respondent/wife filed an application for maintenance, whereas she has been getting the maintenance amount since 2011 i.e. after getting divorce from her husband Rajesh Gupta and is also residing with him. The said fact was not considered by the learned Family Court and dismissed the application filed by the appellant. Therefore, the impugned judgment and decree passed by the learned Family Court are liable to be set aside.

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Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Rani Narasimha Sastry Vs. Rani Suneel Rani; (2020) 18 SCC 247 , this Court’s judgment dated 23.01.2023 passed in FA(MAT) No. 81/2019 {Smt. Duleshwari Sahu Vs. Ramesh Kumar Sahu} , judgment dated 13.07.2022 passed in FAM No. 94/2013 {Dr. Ramkeshwar Singh Vs. Smt. Sheela Singh @ Madhu Singh}.

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Learned counsel for the respondent supports the impugned judgment and submits that the learned trial Court minutely appreciated the oral and documentary evidence and rightly passed the impugned judgment which needs no interference by this Court. He further submits that it is clear that the respondent/wife filed appeal i.e. FAM No. 98/2017 under Section 9 of the Hindu Marriage Act before this Court and this Court

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vide order dated 28.08.2018 allowed the said appeal and the same was affirmed by Hon’ble Apex Court. Appellant filed an application before the learned Family Court on the false and fabricated ground. Marriage between the parties took place in the Arya Samaj. The appellant is a Government Servant and working as Assistant Engineer at Chhattiagarh State Power Generation Company Limited (CSPGCL) Raipur and earned more than Rs.1 lakh per month and further he has other source of income. Whereas the respondent have no definite source of income, therefore, the respondent/wife is entitled to get alimony/maintenance of Rs. 50,000/- per month from the appellant/husband.

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Reliance has been placed on the judgment of Hon’ble Supreme Court in the matter of Mangayakarasi Vs. M. Yuvaraj; 2020 (3) KCCR (SN)183 (SC).

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Heard counsel for the parties and perused the material placed on record.

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11.It is clear from the record of learned trial Court that the appellant/husband examined himself as A.W.-1, Shabbir Ali as A.W.-2, Upendra Kumar as A.W.-4 and Himanshu Upadhyay as A.W.-5 whereas respondent/wife examined herself as N.A.W.-1 and Pushkar Gupta as N.A.W.-2.

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Appellant/husband- Neeraj Kumar Gupta (A.W.-1) stated that the respondent/wife lodged the FIR against him and his father for the offence under Section 498-A/34 of IPC, however they were acquitted by the learned trial Court vide judgment dated 01.04.2019 (Ex.P/1).

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In cross-examination, he admitted that he was married to the

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respondent on 24.03.2012 at Aarya Samaj Mandir, Harit Vihar Delhi. It

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is also stated that the respondent/wife is residing with her ex-husband Rajesh Gupta and their children and they are living as husband and wife.

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Shabbir Ali (A.W.-2) also stated that the defendant/respondent is still living with her husband Rajesh @ Raju and they both have three children.

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In cross-examination, he stated that presently Rajesh is living in Bazarpara with his father. He further stated that he has no knowledge as to where the respondent resides and also he has no knowledge about the divorce between the respondent- Kanchan Gupta and Rajesh Gupta.

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Upendra Kumar (A.W.-4) also stated that the name of husband of respondent- Kanchan Gupta is Raju and she lived with her children. In cross-examination, he stated that he never met the respondent

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Kanchan Gupta for the last 6-7 years and also he has no knowledge about the divorce between her and her ex-husband Rajesh Gupta.

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Himanshu Upadhyay (A.W.-5) also stated that Rajesh Gupta is husband of respondent- Kanchan Gupta.

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In cross-examination, he stated that he did not see Rajesh Gupta in the house of the defendant/respondent.

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Respondent/wife- Kanchan Gupta (N.A.W.-1) admitted in para 4 of her cross-examination that Rajesh Gupta is her ex-husband and from whom she has two children and she adopted one daughter. She further admitted that all three children are living with her after getting divorce from Rajesh Gupta. However, she denied that at present Rajesh Gupta takes care of the children and bears their expenses.

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In para 6 of her cross-examination, she admitted that at the time of her marriage with the appellant at Arya Samaj Mandir, she did not inform the appellant about her divorce and her three children. She voluntarily stated that when he knew the said fact then as to why she would tell him the same.

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In para 7, she also admitted that one criminal case is pending against her and her elder son. She denied that in the said criminal case, her ex-husband took bail for them.

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Pushkar Gupta (N.A.W.-2) stated that the respondent is his mother and appellant used to visit the house of his mother. He further stated that in the year 2018, he took his mother to the house of the appellant situated at Darri, Korba. They had a truck which contained household goods. The appellant did not allow the respondent to enter his house.

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The learned trial Court found that the appellant/husband failed to prove this fact that the respondent/wife committed any cruelty with him. Upon perusal of judgment dated 01.04.2019 (Ex.P/1) passed by Judicial Magistrate First Class, Baikunthpur, District- Korea (C.G.), it is evident that the respondent/wife lodged FIR against the appellant- Neeraj Gupta and his father for the offence under Section 498-A/34 of IPC. However, they were acquitted of the alleged offece by the trial Court. Thus, it is clear from this judgment that the learned Judicial Magistrate First Class found that the complainant has failed to prove any cruelty committed by both the accused and, therefore, acquitted the appellant and his father.

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It is also evident from the statement of respondent/wife that she admitted that at the time of her marriage with the appellant in Arya Samaj Mandir, she did not disclose that she is divorcee and has three

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children. It is also evident from her statement that she is still in contact with her ex-husband Rajesh Gupta.

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Appellant/husband alleged that without getting decree of divorce from her ex-husband Rajesh Gupta, the respondent/wife performed marriage with him therefore, burden of proof lies on the respondent/wife to rebut it by filing a decree of divorce before the learned trial Court or before this Court but she did not file any such decree and rather admitted the fact that Rajesh Gupta is her first husband and they both have three children. She also admitted that since 2014, she has no relation with the plaintiff/appellant.

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In the matter of Smt. Duleshwari Sahu Vs. Ramesh Kumar Sahu passed in FA(MAT) No. 81/2019 vide order dated 23.01.2023 , this Court observed and held in para 14 as under:-

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“14. Further it has been held by the Apex Court in the matter of Raj Talreja Vs. Kavita Talreja (Civil Appeal No. 10719 of 2013, decided on 24.04.2017), that a false complaint was registered against the husband by the wife and in criminal proceedings, the husband had been acquitted. On this account, the husband was held entitled to decree of divorce, on the ground of cruelty. Further, in the matter of Rani Narsmiha Sastry Vs. Rani Suneela Rani (Civil Appeal No. 8871 of 2019) it has been held by the Apex Court that:

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"when a person undergoes a trial in which he is acquitted of the allegation of offence under Section 498-A IPC, levelled by the wife against the husband, it cannot be accepted that no cruelty has meted on the husband. As per pleadings before us, after parties having been married on 14.08.2005, they lived together only for 18 months and thereafter they are separately living for more than a decade now. In view of the foregoing discussion,

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we conclude that appellant has made a ground for grant of decree of dissolution of marriage on the ground as mentioned in Section 13(i) (i-a) of the Hindu Marriage Act, 1955.”

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This Court in the matter of Dr. Ramkeshwar Singh Vs. Smt. Sheela Singh @ Madhu Singh passed in FAM No. 94 of 2013 vide order dated 13.07.2022 held in paras 21, 22, 23 and 26 as under:-

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“21. Further in a recent decision of Joydeep Majumdar v. Bharti Jaiswal Majumdar (2021) (supra), a similar issue was dealt with by the Supreme Court where the wife had marred the reputation of the husband by defamatory complaints to husband's superiors in army, which led to a Court of Inquiry held by the Army authorities against the husband. His reputation was damaged and career progress suffered. The Supreme Court held "When the reputation of the spouse is sullied amongst his colleagues, his superiors and the society at large, it would be difficult to expect condonation of such conduct by the affected party.” The Court also held that the High Court was in error in describing the broken relationship as normal wear and tear of middle class married life and the marriage was dissolved.

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In the present case, apart from the appellant-husband, his entire family members were inculpated. The wife alleged that the husband has treated her with cruelty and he was not entitled to divorce. In acquittal judgment of the Court below. It was categorically found that the allegations are patently false. If the letters on which the respondent wife vehemently relied are examined, the cumulative effect of which would go

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to show that periodically the allegations are made against the husband and all her in-laws. The authenticity of the letters was not accepted by the learned that Court while adjudicating the trial. As such, when the finding has been arrived at about the conduct of the respondent who levelled false accusations against the appellant, it would lead to show "Cruelty” on her part.

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The Supreme Court in V. Bhagat v. D. Bhagat (Mrs.) (1994) 1 SCC 33 held that mental cruelty in Section 13(1) (1a) can broadly be defined as that conduct which inflicts upon the other party such mental pain and suffering as would make it not possible for that party to live with the other. In other words, mental cruelty must be of such a nature that the parties cannot reasonably be expected to live together. The situation must be such that the wronged party cannot reasonably be asked to put-up with such conduct and continue to live with the other party. It is not necessary to prove that the mental cruelty is such as to cause injury to the health of the petitioner. While arriving at such conclusion, regard must be had to the social status, educational level of the parties, the society they move in, the possibility or otherwise of the parties ever living together in case they are already living apart and all other relevant facts and circumstances which it is neither possible nor desirable to set out exhaustively. What is cruelty in one case may not amount to cruelty in another case. It is a matter to be determined in each case having regard to the facts and

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circumstances of that case. If it is a case of accusations and allegations, regard must also be had to the context in which they were made.

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Further the nature of accusations made against each other in a matrimonial case would show that since 1996, the parties are living apart and litigating in different courts. Taking into such facts into consideration, we are of the view that that there is irretrievable break-down of marriage which is beyond repairs. Under the circumstances, we allow the appeal and grant a decree of divorce to the husband. The marriage solemnized between the parties is dissolved and accordingly a decree be drawn.”

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In light of above, in the present matter, on perusal of the pleadings and the evidence adduced by them in support thereof, as also the admission of the parties and their witnesses, it is found that the respondent/wife did not file copy of decree of divorce from her first husband Rajesh Gupta but it is an admitted position that the wife got decree under Section 9 of the Hindu Marriage Act and appellant/husband also admitted that he performed marriage in Arya Samaj. Respondent/Wife admitted this fact that she is living separately with the appellant since 2014. It is also proved that a criminal case was filed against the appellant/husband and his father and after conclusion of trial, they both were acquitted by the learned trial Court. It is clear that since 2014, the parties are living apart and litigating in different courts but the learned trial Court did not consider all these aspects properly and gave wrong finding, therefore, the finding recorded by the learned trial Court is not sustainable and is liable to be set aside.

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Now coming to grant of alimony to wife, it is apparent from the fact and pleadings that the respondent/wife has failed to prove this fact that she got divorce from her first husband. She is getting Rs.10,000/- per month from the appellant/husband as maintenance under Section 125 of Cr.P.C. Thus, it would not be appropriate to grant any additional amount towards alimony to the wife.

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Taking into consideration the facts and circumstances of the case, the overall evidence on record coupled with the conduct of the respondent/wife and the judgments referred to above, the appeal is allowed. Consequently, the impugned judgment and decree are hereby set aside. The marriage solemnized between the parties is dissolved.

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Let a decree be drawn up accordingly.

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Sd/Sd/-

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(Rajani Dubey) (Bibhu Datta Guru) Judge Judge

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Ruchi

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RUCHI YADAV Digitally signed byRUCHI YADAV

Neeraj Kumar Gupta v. Smt. Kanchan Gupta @ Alka Gupta

Case brief

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Neeraj Kumar Gupta v. Smt. Kanchan Gupta @ Alka Gupta

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