Jharkhand High Court
Parden Firda Kujur W/O Manoranjan Anand ... vs Manoranjan Anand @ Manoranjan Bakhla ... on 23 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Rajesh Kumar
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
First Appeal No.214 of 2023
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Parden Firda Kujur W/o Manoranjan Anand @ Manoranjan Bakhla and
d/o late Paulus Kujur, aged about 26 years, r/o village-Nini, PO-
Narinawadih, Ps-Kisko, District-Lohardaga ....... ... Appellant
Versus
Manoranjan Anand @ Manoranjan Bakhla S/o late Vinod Bakhla r/o
village-Jhaljamira, PO & PS-Senha, District-Lohardaga
... ... Respondent
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Appellant : Mr. Kishore Kumar Singh, Advocate
For the Respondent : Mr. Nawin Kumar, Advocate
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rd
Order No.05/Dated:23 April, 2025
Per Sujit Narayan Prasad, J.
1. The instant appeal under section 19(1) of the Family Courts Act,
1984 is directed against the judgment dated 29.11.2022 and the decree
dated 01.12.2022 passed in Original Case No.14 of 2022 by the learned
Principal Judge, Family Court, Lohardaga (in short, learned Family Judge)
whereby and whereunder the marriage between the appellant-wife,
namely, Parden Firda Kujur and the respondent-husband, namely,
Manoranjan Anand @ Manoranjan Bakhla has been dissolved by a decree
of divorce on the ground of cruelty.
2. The brief facts of the case as per the pleadings made in the plaint
having been recorded by the learned Family Judge, needs to be referred
herein as:
(i) The plaintiff's (respondent herein) case in brief is that the plaintiff
and defendant wife (appellant herein) are by caste Oraon Schedule
Tribe and by religion Christian and they are governed by Christian
religion. The marriage of plaintiff was solemnized with defendant
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on 04.04.2013 as per Christian rites and custom in N.W.G.E.L
Church, Nini. After marriage defendant came to her matrimonial
house and both of them started their conjugal life.
(ii) On the first day of her marriage, the defendant wife disclosed that
her marriage was solemnized under pressure of her parents. She
wants to marry with another boy to whom she loves. After few days
of marriage, the real face of defendant came out.
(iii) She was very arrogant and verbally abusive. Her behaviour was very
rough and rude towards the petitioner and his parents. During living
in her matrimonial house, the defendant noticed that the standard of
living of plaintiff is lower than that of her father. She is more
educated in comparison to the plaintiff.
(iv) There is great difference in between the family of the plaintiff and
defendant. She threatened the plaintiff to commit suicide. She has
further threatened the plaintiff and his family members to implicate
in false case of dowry and torture. The conduct of defendant
inflicting immeasurable mental agony and torture amounts to
cruelty upon the plaintiff.
(v) It is alleged that the defendant is lady of bad character. She always
remained busy in talking with her lover on mobile. She lived about
15 days in her matrimonial house and thereafter she fled away to
Nainital with her Jija, namely, Anil Toppo without knowledge and
consent of the plaintiff. After that plaintiff several times contacted
the defendant on mobile, but she refused to live with plaintiff. Later
on, she left receiving the mobile call sent by the plaintiff.
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(vi) In the month of December 2014, all of sudden the defendant wife
came in her matrimonial house and resided few days. During that
period, she resided separately in another room and denied to cohabit
with plaintiff. After few days, she again left her matrimonial house
without permission of the plaintiff. The plaintiff several times
contacted the defendant and her family members, but she refused to
come in her matrimonial house. In the month of November 2015,
again defendant came in her matrimonial house and she lived there
about one week. After that she went away to her maika.
(vii) After November 2015, the defendant did not come to her
matrimonial house. The plaintiff got knowledge that she is residing
with her lover.
(viii) On 08.01.2022, a meeting was held in N.W.G.E.L Church, Dari, but
defendant refused in the said meeting to live with the plaintiff. There
is no any cohabitation since after 15 days of marriage. The
defendant has treated the plaintiff with such cruelty as to cause a
reasonable apprehension in mind of the plaintiff that it would be
harmful or injurious for the plaintiff's life.
(ix) The cause of action for the suit arose on 04.04.2013 on the date of
marriage and several other days, when plaintiff husband was
subjected to cruelty or torture and in November 2015 when
defendant left her matrimonial house and lived in her maika. She
has deserted the plaintiff since more than 6 years without any valid
reason. Lastly on 08.01.2022, defendant refused to come and live
with plaintiff.
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(x) Thereafter the plaintiff/husband had preferred a suit for decree of
divorce under section 10 (ix) (x) of Divorce Act 1869 which has
been instituted as Original Case No. 14 of 2022.
(xi) Accordingly, notice was issued but respondent wife had not
appeared thereafter, the learned Family Court has allowed the said
suit ex parte by jotting down in paragraph 12 of the impugned
judgment that as the case proceeded ex-parte against the defendant
though notice was duly served against her, no case on her behalf
could be brought on the record which made the assertion of the
plaintiff through his evidence oral and documentary and remained
unrebutted.
3. Aggrieved with the aforesaid judgment and decree by which
granting divorce has been granted, the present appeal has been preferred
by the respondent wife (appellant herein).
Submission of the learned counsel for the appellant:
4. The ground has been taken on behalf of the appellant-wife that the
impugned judgment and decree has been passed ex-parte. The learned
counsel appearing for the appellant has substantiated the said argument by
referring to the order dated 08.08.2022 passed by the learned trial Court
wherein the learned Court on the presumption of deemed service of notice
has proceeded ex-parte and thereafter concluded the proceeding finally for
dissolution of marriage.
5. It has been contended that even the learned trial Court has not taken
care of to go for the substituted service or other procedure laid down in the
Code of Civil Procedure which is required to be followed in view of the
section 14 of the Family Courts Act, 1984.
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6. It has, therefore, been contended that the impugned judgment and
decree since have been passed ex-parte on the fiction of deemed service of
notice, therefore, the impugned judgment and decree needs to be interfered
with.
Submission of the learned counsel for the respondent/plaintiff:
7. While on the other hand, the learned counsel appearing for the
respondent-husband who has appeared by virtue of the notice issued vide
order dated 30.11.2023 submitted that the judgment and decree impugned
passed by the learned Family Judge, Lohardaga cannot be said to be ex-
parte, since, the notice has been deemed to be served as would be evident
from the order dated 08.08.2022 of the learned Family Court.
8. Learned counsel for the respondent-husband, based upon the aforesaid
grounds, has submitted that the impugned judgment and decree, therefore,
needs not fit to be quashed
Analysis:
9. We have heard the learned counsels appearing for the parties, gone
through the Trial Court Records, as also the impugned judgment and
decree, the testimonies of the witnesses and the documents exhibited
therein.
10. The sole ground as has been taken by the appellant that the
impugned judgment and decree have been passed ex-parte and, as such,
we have not gone through the issue on merit, rather we have concentrated
ourselves on the issue of the fact that as to whether the impugned judgment
and decree can be said to be ex-parte or not.
11. This Court in order to asses the aforesaid fact has gone through
the original record which has been called for by this Court vide order dated
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11.03.2024 which contains the order issuing notice by the concerned
Court, i.e., the learned Family Court, Lohardaga.
12. It is evident from the order dated 12.04.2022 that the case was
admitted for hearing and plaintiff was directed to file requisites.
Thereafter, vide order dated 25.04.2022 order was passed to issue the
notices. Accordingly. notice has been issued vide dated 26.04.2022 which
would be evident from side portion of the order sheet.
13. It is evident from the order dated 08.08.2022 that the learned
Family Judge has come to a finding with respect to the service of notice
and on perusal of the case record has come to the aforesaid findings of
service of notice deemed to be served on expiry of a period of one month
from 21.06.2022.
14. It further appears from the aforesaid order that the case has been
directed to be proceeded ex-parte against the appellant herein. For ready
reference, the order dated 08.08.2022 is extracted below:
"08/08/22 Petitioner is in representation through his ld. Counsel.
On perusal of case record, it appears that one month has elapsed from
21/06/22, regd. envelope has not returned back. So, it is presumed that
the notice has been received by the O.P. as sufficient opportunity has
been given to the O.P but he failed to appear before the Court.
Therefore, for the interest of justice, the case is proceeded ex-parte
against the O.P.
Petitioner is directed to produce witness on the next date.
Put up on 18/08/22 for Ex-parte evidence."
15. This Court is conscious with the fact that in view of the
provisions of Section 114 illustration (f) of the Evidence Act, 1872 and
Section 27 of the General Clauses Act, 1897, there is a presumption that
the addressee has received the letter sent by registered post. However, the
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presumption is rebuttable on a consideration of evidence of impeccable
character.
16. In the case of "Gujarat Electricity Board v. Atmaram
Sungomal Poshani" (1989) 2 SCC 602 the Hon'ble Apex Court held as
under :
"8. There is presumption of service of a letter sent under registered
cover, if the same is returned back with a postal endorsement that the
addressee refused to accept the same. No doubt the presumption is
rebuttable and it is open to the party concerned to place evidence before
the court to rebut the presumption by showing that the address
mentioned on the cover was incorrect or that the postal authorities
never tendered the registered letter to him or that there was no occasion
for him to refuse the same. The burden to rebut the presumption lies on
the party, challenging the factum of service."
(emphasis added)
17. It is evident from the order dated 08.08.2022 that the learned
Family Judge has not taken recourse of even the substituted service of
notice as provided under the Code of Civil Procedure even though the
procedure which is to be followed as available in the Code of Civil
Procedure is to be followed by the learned Family Judge in view of the
provision as contained under section 14 of the Family Courts Act.
18. The learned family court erred in not appreciating the facts in the
correct perspective as substituted service is meant to be resorted to serve
the notice at the address known to the parties where the party had been
residing last.
19. The order sheet of different dates of Family Court regarding
service of notice indicate that in a routine manner order has been passed
and there is no whispering that court has fully satisfied with
the service of notice served upon the appellant-wife.
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20. It requires to refer herein that when the order dated 08.08.2022
speaks about the notice deemed to be served then how such observation
has been made in paragraph no.12 that the notice has duly been served
upon the defendant (appellant herein).
21. Further it has not come on record that the respondent/wife
(appellant herein) had refused to accept the registered letter and the same
had been returned back by the postal authorities with an endorsement that
the addressee refused to accept the same. Herein the appellant/respondent
had asserted that neither any service report regarding the service of
summon is available on record nor any point of time the summon was
served upon the appellant (defendant before the learned trial Court) and in
absence of knowledge she could not filed her written statement opposing
the prayer of plaintiff.
22. Further, the respondent husband has filed divorce petition
making serious allegations against the wife/appellant. Having regard to the
nature of allegations levelled against the appellant-wife, we are of the view
that the Family Court ought to have taken all possible steps in effecting
service of notice upon the appellant and so as to afford opportunity to the
appellant to contest the matter on merits by filing a written statement and
by cross-examination.
23. The order sheet dated 08.08.2022 clearly indicates that case has
been fixed for ex parte hearing without taking proper recourse. Thus, it
appears that the impugned judgment and decree passed by the learned
Family Judge suffers from noncompliance of cardinal principle of natural
justice.
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24. It needs to refer herein that the case which is related to the
matrimonial dispute concerning annulment of marriage or divorce
proceeding is a serious matter and it connects entire life of husband and
wife against whom a decree for declaration of nullity or divorce has been
sought. In the said matter, the court should not follow mechanical approach
for compliance of issuance of notice rather the court should take all
statutory provision into account which is expected for appearance of the
party.
25. This Court, in exercise of the appellate jurisdiction, is of the view
that the learned Family Judge while posting the matter for ex-parte hearing
on the fiction of being notice deemed to be served without taking all
recourse available in the statute has erred in passing the impugned
judgment and decree and, as such, the impugned judgment and decree need
interference on the ground of providing an opportunity to the defendant-
wife to defend herself (the appellant herein).
26. Thus, it is evident from order dated 08.08.2022 that the learned
Court failed to adopt other mode of service of summon and proceeded ex-
parte merely after completion of one month time from the date of issuance
of notice without actual service of notice resulting into miscarriage of
justice and passing of impugned judgement and decree and the same is
liable to be set aside.
27. Accordingly, the impugned judgment dated 29.11.2022 and the
decree dated 01.12.2022 passed in Original Case No.14 of 2022 by the
learned Principal Judge, Family Court, Lohardaga is hereby quashed and
set-aside.
28. In the result, the instant appeal stands allowed.
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29. The matter is remitted to the learned Family Court, Lohardaga
by revival of the dispute being Original Case No.14 of 2022 to its original
file so that the matter may be decided on its own merit in accordance with
law.
30. Mr. Kishore Kumar Singh, the learned counsel appearing for the
appellant has undertaken before this Court that the appellant-wife will put
her appearance before the learned Family Court, Lohardaga by filing
Vakalatnama within three weeks from today.
31. Pending I.As, if any, stands disposed of.
32. The trial court record be sent back forthwith.
(Sujit Narayan Prasad, J.)
(Rajesh Kumar, J.)
Sudhir
AFR
