Sumitro Das vs Soma Das
2026 Latest Caselaw 3121 Jhar

Jharkhand High Court

Sumitro Das vs Soma Das on 16 April, 2026

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad, Sanjay Prasad

    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         F.A. No. 235 of 2025
                                ---------

   Sumitro Das                                       ... ... Appellant
                                Versus
   Soma Das                                         ... ... Respondent
                                ---------

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY PRASAD

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   For the Appellant     : Mr. Lukesh Kumar, Advocate
   For the Respondent    : Mr. Achinto Sen, Advocate
                                  ---------
             th
05/Dated: 16 April, 2026

1. The instant appeal is directed against the impugned judgment dated

27.09.2024 and decree dated 07.10.2024 passed in Original Suit No.47

of 2023 by the learned Principal Judge, Family Court, Koderma,

whereby and whereunder, the petition filed by the appellant under

Section 13 of the Hindu Marriage Act for dissolution of marriage

against the respondent/defendant has been dismissed.

2. This Court, while considering matters arising out of matrimonial

disputes, has come across that in a majority of ex-parte judgments

passed by the learned Family Courts, the mandate of the procedural law

has not been duly complied with. Such ex-parte judgments appear to

have been rendered in a routine manner. Moreover, while passing

orders of dissolution of marriage, in most cases where alimony has

been awarded under Section 25 of the Hindu Marriage Act, 1955, the

same has often been granted without the support of affidavits. This

practice is in clear violation of the directions issued by the Hon'ble

Supreme Court in Rajnesh v. Neha & Anr., (2021) 2 SCC 324.

3. With regard to the issue of ex-parte judgments, this Court is conscious

of the settled position that in the event of non-appearance of either

Page | 1 party, the proceedings are required to be taken ex-parte so that the

pending dispute may not be allowed to linger unnecessarily, thereby

preventing any misuse of the judicial process.

4. But what has been noticed is that, while passing ex-parte judgments,

the learned Family Courts of different Principal Benches have, in

several instances, relied solely upon the tracking report furnished by

the plaintiff. Simultaneously, applications seeking substituted service

of notice are being entertained on that basis, and thereafter, orders

permitting substituted mode of service of notice are being passed and

the moment paper publication is brought to the notice of the concerned

learned Family Court, the matter is straightaway posted for ex-parte

hearing.

5. This Court would like to refer one of the instances regarding the

judgment passed in Original Suit No.76 of 2023 passed by the learned

Additional Principal. Judge, Additional Family Court-II, Dhanbad

which has been assailed before this Court in F.A. No. 104 of 2026

which is listed today on Board wherein also ex-parte judgment has been

passed only on the basis of tracking report showing item delivery at the

instance of the petitioner itself.

6. It needs to refer herein that the procedure for service of notice has been

provided under the Civil Procedure Code. In a case where the notices

are being issued upon the respondent on the address furnished in the

plaint by the plaintiff itself, the notices are being issued on the said

address as available in the plaint.

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7. The Court although is having no mechanism to verify the correctness

of the address but the Court is required to ensure the service of notice

upon the opposite party/respondent to be served through the

jurisdictional police station in addition to the process of service of

notice which is to be send through the registered post or ordinary

process.

8. The purpose is that to provide an effective opportunity to the

respondent to defend the suit and even thereafter, if there is no

appearance, then, the Court is required to come to the conclusive

finding by referring all these facts taken from the date of issuance of

notice through registered and ordinary process as also to be served

through jurisdictional police station. Depending upon the averment

made in the affidavit which is to be given by the concerned

jurisdictional police station and even if such appearance is not there in

a case of notice having been served, there is no question and occasion

to hack the opportunity of substituted mode of service of notice.

9. The substituted service of notice is permissible only in circumstances

where the noticee is found to be no longer residing at the given address,

or has left the place at which the notice was sought to be served.

10. The substituted service of notice is not required in cases where the

notice has in fact been received by the opposite party/respondent, but

the party has chosen not to appear, or where there has been a refusal to

accept service. In such circumstances, it is well within the jurisdiction

of the learned Trial Court / Family Court to post the matter for ex-parte

Page | 3 hearing and to proceed accordingly. However, it has been observed that

these settled processes are not being followed.

11. The consequence of such practice is that this Court is unnecessarily

burdened in the exercise of its appellate jurisdiction, as ex-parte

judgments and decrees passed in violation of the settled procedure are

repeatedly brought before it. In such cases, this Court is compelled to

quash the ex-parte judgment/decree and remit the matter to the

concerned Family Court by reviving the original suit for fresh

adjudication after affording an opportunity of hearing to the parties.

This results not only in wastage of the precious time of the Family

Courts but also of this Court, thereby defeating the very object of

expeditious disposal of matrimonial disputes.

12. The aforesaid situation has arisen due to non-observance of the strict

principle of ensuring the appearance of the concerned opposite

party/respondent in the suit.

13. The second question which we have seen that the issue of alimony

either interim pendente lite as provided under Section 24 or the

permanent alimony as provided under Section 25 of the Hindu

Marriage Act, 1955 is being taken care of.

14. Section 24 of the Hindu Marriage Act, 1955 has been enacted with the

object of ensuring sustenance of either spouse--be it the husband or

the wife, depending upon their financial capacity. The legislative intent

behind this provision is to secure the means of livelihood for the spouse

who is otherwise financially dependent, so as to enable such spouse to

effectively contest the litigation. The provision thus takes into account

Page | 4 not only the requirement of meeting litigation expenses but also the

issue of survival and sustenance during the pendency of matrimonial

proceedings.

15. This Court has come across numerous instances wherein the learned

Family Judges of most of the Principal Courts have failed to adhere to

the mandate of Section 24 of the Hindu Marriage Act, 1955.

16. Similarly, it has been observed that the concerned Family Courts are

not calling for specific affidavits for the purpose of passing orders on

permanent alimony, as required under Section 25 of the Hindu

Marriage Act, 1955. However, this practice runs contrary to the settled

mandate, since the requirement of affidavits is integral to ensuring a

fair and just determination of permanent alimony.

17. It needs to refer herein that the learned Family Judge, under the

provisions of the Family Courts Act, 1984, is expected to act in the

capacity of a guardian rather than merely as an adjudicator. The role of

a guardian is to safeguard the best interests of that section of society

which seeks to avail the remedies provided under the Family Courts

Act, 1984, and to ensure that such parties are not deprived of their

rightful sustenance and protection.

18. This Court has taken note in several cases that even where orders of

permanent alimony are being passed, there is no discernible basis for

the conclusion reached in the assessment of the quantum of amount due

to non-availability of the affidavit filed by the litigants. The said

assessment can only be properly ascertained if affidavits are called for

from the parties, disclosing their respective financial capacities and

Page | 5 liabilities. In the absence of such affidavits, the determination of

permanent alimony becomes arbitrary and contrary to the settled

mandate of law as enunciated by the Hon'ble Apex Court in the case

of Rajnesh vs. Neha (supra).

19. The aforesaid aspect of the matter has already been elaborately dealt

with by the Hon'ble Supreme Court in Rajnesh v. Neha (supra).

However, despite the binding nature of the said mandate under Article

141 of the Constitution of India, it is observed that one or the other

learned Family Judges has failed to adhere to the directions so issued.

20. This Court, being conscious of its jurisdiction conferred under Article

227 of the Constitution of India, is passing the present order to ensure

compliance of the ratio rendered by the Hon'ble Apex Court in the case

of Rajnesh Vs. Neha (supra) by the learned Principal Judges and

Additional Judges of the Family Courts. The purpose is to safeguard

against any miscarriage of justice to the parties and to secure an

effective and meaningful adjudication of matrimonial disputes.

21. In such a situation, it will also enable the appellate court to more

effectively appreciate the issues, once the learned Principal

Judge/Additional Judge of the Family Courts has duly examined the

affidavits filed by the respective parties and based the assessment

thereupon.

22. Further, with regard to directions on the issue of ex parte proceedings,

it is imperative that the learned Principal Judges/Additional Judges of

the Family Courts exercise due caution and scrupulously follow the

Page | 6 prescribed process to ensure proper service of notice before passing

any order posting the matter for ex parte judgment.

23. Accordingly, the learned Registrar General of this Court is directed to

forthwith communicate this order to all the learned Principal Judges

and Additional Judges of the Family Courts for its strict compliance.

24. It is further directed that the learned Principal Judges and Additional

Judges of the Family Courts shall, in all pending matters, call upon the

parties to file affidavits as mandated by the Hon'ble Supreme Court in

Rajnesh v. Neha (supra), for adjudication of issues arising at the stage

of Section 24 or Section 25 of the Hindu Marriage Act, 1955.

25. So far as the issue of the present case is concerned, learned counsel for

the respondent has submitted that although the reference has been made

in the order dated 06.04.2026 that the arrears of maintenance amount

is to the tune of Rs.2-3 lakhs approximately but that amount as per the

updated instructions received, is about Rs.4 lakhs.

26. Distress warrant has already been issued which has been taken note by

this Court in the order dated 06.04.2026 passed in this proceeding.

27. Mr. Lukesh Kumar, learned counsel for the petitioner has submitted

that the due arrears of amount shall be paid within a period of three

weeks.

28. Accordingly, let the said amount be paid within a period of three weeks.

29. In respect of the issue of permanent alimony, it is directed that

individual affidavits shall be filed by the parties, disclosing therein the

Page | 7 complete details of their movable and immovable properties, so that the

Court may arrive at a fair and just assessment of the quantum payable.

30. It is made clear that, for determining the corroborative value or

genuineness of the said affidavits, this Court may, if necessary, direct

the District Administration to conduct an inquiry before passing the

appropriate order on the issue of permanent alimony.

31. Accordingly, let this case be listed on 11.05.2026.

(Sujit Narayan Prasad, J.)

(Sanjay Prasad, J.) 16th April, 2026 Saurabh/-

A.F.R. Uploaded on 18.04.2026

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