Partly allowed

Sampatti @ Soni v. Ballu Chaudhary

Chhattisgarh HC7 Aug 2023FA(MAT)/193/2022

Case brief

AI extract

What is this about?

Appeal against an ex-parte decree for restitution of conjugal rights. The High Court found service on the wife was defective and no service report was on record. The decree was set aside to grant the wife a proper opportunity to defend herself.

What did the court decide?

The ex-parte judgment and decree dated 26/10/2021 is set aside. Parties directed to appear before the Family Court on 5 October, 2023.

Sampatti @ Soni Vs Ballu Chaudhary — Matrimonial and Divorce | Chhattisgarh HC (2023)

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HIGH COURT OF CHHATTISGARH, BILASPUR

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FA(MAT) No. 193 of 2022

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Sampatti @ Soni W/o Ballu Chaudhary, Aged About 24 Years R/o Village Maheshpur, Police Outpost Latori, Police Station - Jainagar, Tahsil And District : Surajpur, Chhattisgarh ---- Appellant

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Versus

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Ballu Chaudhary S/o Suman Chaudhary, Aged About 24 Years R/o Village Nevra, P.S. And Tahsil, District : Surajpur, Chhattisgarh

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–--Respondent

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For appellant – Shri Gyan Prakash Shukla, Advocate. For respondent – Shri R.V. Rajwade, Advocate.

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Hon'ble Shri Justice Goutam Bhaduri &

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Hon'ble Shri Justice Sanjay S. Agrawal Order on Board

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Per Goutam Bhaduri, J. 07/08/2023

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Heard.

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Instant appeal is against the judgement and decree dated 26/10/2021 passed in Civil Suit No.17-A/2020 by the Family Court, Surajpur whereby a decree in favour of the husband under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights has been passed. The wife is on appeal before this court. Mediation report shows that the same has been failed in between the parties.

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In order to satisfy ourselves as to whether ex-parte proceeding is proper or not, we went through the record of the learned family court. Perusal of the record would show that though process was issued but till 27/07/2021 the wife was unserved. When the case was taken up on 24/08/2021 the order sheet shows that at the first instance the service report of the appellant/wife did not receive back to the court and

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subsequently a note is written that the father of the wife appeared and sought time on the ground that daughter is not well. Therefore a date was given. Subsequently no one appeared and the case was fixed for 30/09/2021 and on 30/09/2021 too no one appeared on behalf of the wife and the case was further fixed for 21/10/2021 and on 25/10/2021 she was proceeded ex-parte.

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Perusal of the entire order sheet and the record would show that the service effected on wife is not on record. Only on the presumption that on 24/08/2021 name of Dular Sai Choudhary is written in the margin of the order sheet to show that he claimed to be the father of non-applicant and one thumb impression is also scribed. We are not aware as to whether who appeared and claimed to be the father of the wife and who sought time. When service report was not before the court, in absence of any identity of the service report, the court should not have drawn a presumption that the wife is already served.

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In view of the foregoing facts, we deem it proper that proper opportunity be granted to the appellant/wife to defend herself before the court. Accordingly, the ex-parte judgement and decree dated 26/10/2021 is set aside. The parties are directed to appear before the family court on

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th 5 October, 2023.

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With such observation, the appeal stands disposed of.

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Sd/- Sd/(Goutam Bhaduri) (Sanjay S. Agrawal) Judge Judge

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gouri

Sampatti @ Soni v. Ballu Chaudhary

Case brief

What is this about?

What did the court decide?

Sampatti @ Soni v. Ballu Chaudhary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

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