Smt. Raji Anjum Ansari vs Riyaj Ahmad
2022 Latest Caselaw 5630 Chatt

                                   1

                                                                NAFR

           HIGH COURT OF CHHATTISGARH, BILASPUR

                        FA(MAT) No. 4 of 2021

     • Smt. Raji Anjum Ansari W/o Shri Riyaj Ahmad Ansari Aged
       About 32 Years R/o In Front Of Forest Office, Purana Gaurela,
       Pendra Road, District Bilaspur (Chhattisgarh)

                                                        ---- Appellant

                               Versus

     • Riyaj Ahmad S/o Shri Rajju Ali Ansari Aged About 39 Years R/o
       Kheta Dafai Khongapani, Tahsil- Manendragarh, District : Koriya
       (Baikunthpur), Chhattisgarh

                                                     ---- Respondent




For Appellant            : Shri Achyut Tiwari, Advocate
For Respondent           : Shri Hemant Kumar Agrawal, Advocate



                Hon'ble Shri Justice Goutam Bhaduri &

             Hon'ble Shri Justice Radhakishan Agrawal

                           Order On Board

Per Goutam Bhaduri, J.

08/09/2022

1. Heard.

2. Present appeal is against the order of the Family Court,

Manendragarh dated 20.02.2020 passed in Civil Suit No. 114-A/2019

preferred by the respondent/husband for restitution of conjugal rights

whereby the application preferred by the respondent/husband was

allowed.

3. The parties are governed by the Mohammedan law. Learned

counsel for the appellant submits that the service of notice of the

application by the Family Court was not effected in person to the

appellant/wife and therefore she did not have any knowledge about the

service of notice. Learned Family Court without appreciating the fact

that the service is not effected on the person to the appellant/wife,

proceeded ex-parte, thereby has granted decree for restitution of

conjugal rights. He would further submit that after passing of the

decree, taking advantage of it, the husband has filed an application

seeking divorce, therefore, at least the stand of the wife is required to

be placed before the Family Court as she still wants to continue

relation with the husband.

4. Per contra, learned counsel for the respondent/husband would

submit that the service was effected to the mother of the appellant/wife

while she was living along with them therefore it would be a deemed

service and no fault can be attributed to proceed ex-parte.

5. Considering the short question involved, the record of the

learned court below is perused. The record would show the application

was filed by the husband for restitution of conjugal rights wherein

notices were issued for appearance of appellant/wife. On 13.12.2019,

the court proceeded ex-parte on the ground that the service of

summons is effected. Perusal of the record would show that the

acknowledgment slip which is said to have been effected on the

appellant/wife, signature of Badrunisa is scribed over the

acknowledgment slip and at this stage is not clear as to whether she

was residing with her mother Badrunisa. It is only a presumption.

6. Prima facie, therefore we do not find any ground to uphold the

proceeding of the ex-parte. Furthermore, in our considered opinion,

the right of hearing cannot be denied to the appellant/wife on hyper

technical ground to put forth her defence specially taking into account

the relation inter se between the parties. Accordingly, we set aside the

ex-parte judgment and decree dated 20.02.2020 and direct the parties

to appear before the trial court on 20.10.2022.

                     Sd/-                                  Sd/-

               (Goutam Bhaduri)                 (Radhakishan Agrawal)
                    Judge                              Judge



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