Smt. Anjana Gupta Nee Sengupta vs Sri Tapan Chandra Gupta
2021 Latest Caselaw 2528 Cal

                       IN THE HIGH COURT AT CALCUTTA

                       CIVIL APPELLATE JURISDICTION

                                      APPELLATE SIDE

Present:

The Hon'ble JUSTICE ARINDAM SINHA
     And
The Hon'ble JUSTICE SUVRA GHOSH


                                      F.A. 186 of 2010
            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)
            IA   No.   CAN   8   of   2020 (Old No. CAN   2585 of 2020)

                        Smt. Anjana Gupta nee Sengupta

                                          Versus

                             Sri Tapan Chandra Gupta

      For the Appellant :                   Mrs. Mitali Bhattacharya, Adv.,



      Heard on               :              23rd March, 2021
      Judgment on            :              06th April, 2021


SUVRA GHOSH, J. :-

1. 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. 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. 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. 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. Urgent certified website copies of this judgment, if applied for, be

supplied to the parties expeditiously on compliance with the usual

formalities.

(Arindam Sinha, J.)

(Suvra Ghosh, J.)