Randhir Kumar @ Randheer Kumar vs Reshma Kumari @ Manju Kumari
2023 Latest Caselaw 151 Patna

     IN THE HIGH COURT OF JUDICATURE AT PATNA
                       Miscellaneous Appeal No.625 of 2019
======================================================

Randhir Kumar @ Randheer Kumar, aged about 22 years, male, S/o Sri Ram Sharan Singh, Resident of Village- Chak Daulat, P.O.- Lakhanpura, P.S.- Bakhtiarpur, Dist.- Patna.

... ... Appellant/s Versus Reshma Kumari @ Manju Kumari, aged about 34 years, female, D/o Late Ram Chandar Singh Yadav, Resident of Village-- Bampur, P.O.- Pandarak, P.S.- Pandarak, Dist.- Patna.

... ... Respondent/s ====================================================== Appearance :

For the Appellant/s : Mr. Manish Kumar No. 13, Adv.

Mr. Rohit Kumar, Adv.

For the Respondent/s : Mr. Kumar Uday Bhanu Roy, Adv.

Mr. Binit Kumar, Adv.

====================================================== CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and HONOURABLE MR. JUSTICE SATYAVRAT VERMA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR) Date : 11-01-2023

Heard Mr. Manish Kumar No. 13, the learned

Advocate for the appellant/husband and Mr. Kumar Uday

Bhanu Roy, the learned Advocate for the

respondent/wife.

Patna High Court MA No.625 of 2019 dt.11-01-2023

2. On an application filed by the

respondent/wife for restitution of conjugal rights, the

Family Court, Patna had issued notice to the

appellant/husband, which was never served upon him.

3. It has been urged on behalf of the

appellant that even when the service report of the notice

was not filed in the Court, the Court ordered for paper

publication and ultimately this case was decided ex-

parte, directing the appellant to take back the

respondent and restore the conjugal relationship.

4. Mr. Manish Kumar No. 13, the learned

Advocate, has contested that passing a judgment ex-

parte in such situation was not correct. There was no

service report of summons before the Court for him to

have issued directions for papers publication.

5. Mr. Kumar further refers to the provisions

contained in Order 5 Rule 20 of the Civil Procedure

Code, which delineates the process under which,

substituted service could be effected. Patna High Court MA No.625 of 2019 dt.11-01-2023

6. In support of the aforesaid contention, Mr.

Kumar has produced for inspection of this Court the

certified copy of the entire order-sheet of the Court

below, which reflects that notice was directed to be

issued on 10.10.2017 for which requisites were filed by

the respondent by 05.01.2018. When the matter was

taken up on 28.02.2018, there was no appearance of

the appellant nor was there any service report. On the

same day, without awaiting the service report of

summons to the appellant, a direction was issued for

paper publication, which, ultimately, may have been

printed in the local newspapers. Nonetheless, for breach

of the process as mandated under Order 5 Rule 20 CPC,

the judgment ought not to be sustained and he be given

an opportunity of presenting his cause before the Family

Court.

7. A surprising revelation has been made by

Mr. Kumar Uday Bhanu Roy, the learned Advocate for

the respondent/wife, that pursuant to the judgment Patna High Court MA No.625 of 2019 dt.11-01-2023

impugned in the present petition, the respondent has

gone back to her matrimonial home and is residing

there.

8. We were, at one point of time, reluctant to

pass any order in this appeal for the reason that the

respondent was absolutely satisfied that the judgment

has been complied with. However, the counsel for the

appellant has disclosed another set of more queer facts,

which cannot be adjudicated in this appeal.

9. It has been alleged that the

appellant/husband was forcibly married when he was

only 13 years of age, which fact, according to him, has

been admitted by the respondent/wife, but only because

he could not appear before the Family Court, this issue

could not be brought to the fore.

10. In response to the afore-stated

statement, Mr. Roy, the learned counsel for the

respondent/wife submits that in fact, a suit was brought

by the appellant for dissolution of marriage, which was Patna High Court MA No.625 of 2019 dt.11-01-2023

dismissed for non-prosecution. Against the aforesaid

dismissal, the appellant had approached this Court when

the matter was remitted to the Family Court with a

direction to restore the suit and proceed in accordance

with law. Thereafter, the case for dissolution of

marriage is continuing before the Family Court in which

the respondent has also appeared and has been

contesting the same.

11. Under such circumstance, we deem it

appropriate to set-aside the ex-parte judgment and remit

the matter to the Family Court to allow the parties to

adduce fresh set of evidence for finally coming to a

conclusion.

12. The Family Court shall also consider the

feasibility of merging the aforesaid petition with the

petition for dissolution of marriage and decide the matter

finally.

13. We order accordingly.

14. The Family Court is directed to either take Patna High Court MA No.625 of 2019 dt.11-01-2023

up the case individually or along with the suit for

dissolution of marriage, affording all opportunities to the

parties to present their cause and take a final decision

without any delay.

15. However, we further direct that in case

the respondent is residing in her matrimonial home, in

the meantime, till the suit is finally decided, she shall not

be ousted from her matrimonial home and any attempt

to do that would enable the respondent to approach the

Family Court for the needful.

                                     16.      The       appeal   stands   disposed   off

                      accordingly.




                                                 (Ashutosh Kumar, J)


                                                 (Satyavrat Verma, J)
Praveen-II/Rishabh

AFR/NAFR                NAFR
CAV DATE                N/A
Uploading Date          13/01/2023
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