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2021 DIGILAW 207 (CAL)

Anjana Gupta Nee Sengupta v. Tapan Chandra Gupta

2021-04-06

ARINDAM SINHA, SUVRA GHOSH

body2021
JUDGMENT Suvra Ghosh, J. - The appellant is represented. 2. The respondent goes unrepresented. On the previous occasion it was submitted by learned counsel for the respondent that he was unable to get in touch with his client. It can be inferred from the conduct of the respondent that he is not interested in contesting the appeal. The appeal is taken up for ex-parte hearing and order. 3. The subject matter of the appeal, or for that matter, the suit, pertains to the suffering and frustration of a man who being a widower in his late 50's, made an attempt to gather himself after demise of his wife and recover from the bereavement with the help of the appellant whom he subsequently married, for the well being and upbringing of his children. Unfortunately he miserably failed in his efforts. 4. The respondent/husband who was a widower aged about 59 years married the appellant/wife, a spinster aged about 39 years on 29-11- 1996 according to Hindu rites and customs, after demise of his first wife on 08-10-1994 who left behind a son and a daughter who needed a mother's love, care and affection. The parties started leading marital life together in the respondent's house after marriage. Within a few days it was noticed that the appellant did not nurture any love or affection for the children and started treating the respondent with cruelty and negligence. She subjected the respondent and his children to physical and mental torture and left the house frequently without informing the respondent. The appellant also suppressed the fact of suffering from thyroid and also that one of her lungs was removed by surgery. The appellant finally left the respondent's house in the year 2000 and did not care to return even when the respondent fell seriously ill. After marriage of the respondent's daughter, the respondent brought the appellant back to his house on 02- 02-2002 with the hope to resume cordial relation with her. But the appellant deserted him in 2003 taking with her all her belongings. The appellant also did not attend the rice ceremony of the respondent's granddaughter which was attended by her brothers. Several efforts for reconciliation by the respondent failed for which he was constrained to file a suit for divorce on the grounds of cruelty and desertion. 5. But the appellant deserted him in 2003 taking with her all her belongings. The appellant also did not attend the rice ceremony of the respondent's granddaughter which was attended by her brothers. Several efforts for reconciliation by the respondent failed for which he was constrained to file a suit for divorce on the grounds of cruelty and desertion. 5. The appellant/wife contested the suit by filing written statement wherein she denied the allegations of the respondent/husband made against her and stated that she was not accepted by the respondent and his children who subjected her to cruelty. She was driven out of her matrimonial home on 20-07-2000 and was not provided with any maintenance by the respondent for which she filed an application under section 125 of the Code of Criminal Procedure before the Learned Chief Judicial Magistrate, Barasat. The appellant has been living with her two elder brothers who are bachelors and was not invited to the rice ceremony of the granddaughter. She prayed for dismissal of the suit. 6. The learned trial court, upon consideration of the evidence on record, decreed the suit on contest, granting a decree for divorce in favour of the respondent/husband. 7. The appeal has been preferred by the appellant/wife against the said judgment and decree, praying for setting aside the same. 8. Admittedly marriage between the parties was a fruit of negotiation and was solemnised on 21-11-1996, the respondent being a widower aged about 59 years and the appellant a spinster aged about 39 years. The appellant was aware before marriage that the respondent lost his first wife and had a son and a daughter in his previous marriage. The marriage was a result of consent of the parties. It is not disputed that the appellant left the respondent's house in the year 2000, the appellant claiming that she was driven out therefrom and the respondent urging that she left voluntarily. It is the respondent's case that the appellant took away all her belongings when she left. The appellant stated in her evidence before the learned trial court that besides her musical instruments, tape recorder, cassettes, some books and wearing apparel, no other belonging was lying in her husband's house. This in fact supports the version of the respondent that the appellant left her matrimonial home with almost all her belongings. The appellant stated in her evidence before the learned trial court that besides her musical instruments, tape recorder, cassettes, some books and wearing apparel, no other belonging was lying in her husband's house. This in fact supports the version of the respondent that the appellant left her matrimonial home with almost all her belongings. Had the appellant been driven out of her matrimonial home by the respondent, she could not have taken away her belongings. The fact that she left with her belongings suggests that she left voluntarily and was not forced to leave the house. Also, it is strange to note that no complaint was lodged by her before any authority with regard to the alleged cruelty meted out upon her in her matrimonial home. 9. Admittedly the appellant was detected with thyroid and the respondent provided all the assistance required for treatment of the appellant which goes to show that the respondent nurtured feeling of love, affection and attachment with the appellant and cared for her health and well being. Per contra, the appellant admittedly suppressed before the respondent of her having lost a lung by way of surgery prior to her marriage. She was also oblivious regarding the health and well being of her husband after she left for her brother's house on 20-07-2000 which indicates that she had not developed any concern for her husband. 10. The appellant has alleged that she was not invited by the respondent for the rice ceremony of the granddaughter of the respondent. This attitude of the appellant in itself proves that she did not consider herself to be a member of the respondent's family, nor did she treat the respondent's children as her own. It is unfortunate that she expected formal invitation for the rice ceremony of her step daughter's child when she was supposed to be by her side voluntarily. 11. It is also admitted by the appellant that she lodged a complaint against the respondent under section 498A of the Penal Code after the divorce suit was instituted against her. In other words, the only reason for filing the criminal complaint was the divorce suit and not any kind of cruelty meted out upon her, the complaint therefore being false and frivolous. 12. In other words, the only reason for filing the criminal complaint was the divorce suit and not any kind of cruelty meted out upon her, the complaint therefore being false and frivolous. 12. It is inconceivable that though the appellant has prayed for setting aside the decree of divorce, not once has she stated that she is ready and willing to resume marital life with the respondent. It is only for the purpose of challenging the decree in favour of the respondent that the present appeal has been preferred and not because the appellant is eager to reunite with her husband. The alleged misbehaviour and cruelty of the appellant have been corroborated by the daughter's husband who has adduced evidence as PW-2. On the other hand, allegation of cruelty against the respondent has not been substantiated by cogent evidence. 13. The learned trial court has elaborately dealt with the evidence on record and has rightly come to the conclusion that the respondent's prayer for a decree for divorce on the ground of cruelty and desertion ought to be granted on the respondent's proving such allegations. The conduct of the appellant all throughout demonstrates her rude, cruel and indifferent attitude towards the respondent and the children whereas the evidence on record gives a vivid picture of the tolerance of the respondent who made all efforts to lead a happy, peaceful life with the appellant, fulfilled her wishes regarding taking music lessons and provided her with medical facilities and other comforts possible. 14. The appeal is devoid of any merit and is dismissed. 15. F.A. 186 of 2010 is dismissed. 16. Connected applications being IA No. CAN 4 of 2011 (Old No. CAN 6357 of 2011), IA No. CAN 6 of 2013 (Old No. CAN 12692 of 2013), IA No. CAN 7 of 2016 (Old No. CAN 7093 of 2016), and IA No. CAN 8 of 2020 (Old No. CAN 2585 of 2020) are disposed of. 17. Judgment dated 20-02-2010 passed in matrimonial suit no. 2 of 2004 by the Learned Additional District Judge, 11th Court Alipore and the decree that followed it are affirmed. 18. There will however be no order as to costs. 19. A copy of this judgment be sent to the learned trial court for information and necessary action. 20. 17. Judgment dated 20-02-2010 passed in matrimonial suit no. 2 of 2004 by the Learned Additional District Judge, 11th Court Alipore and the decree that followed it are affirmed. 18. There will however be no order as to costs. 19. A copy of this judgment be sent to the learned trial court for information and necessary action. 20. Urgent certified website copies of this judgment, if applied for, be supplied to the parties expeditiously on compliance with the usual formalities.