Dr. Pritam Kumari @ Dr. Preetam Kumari Vs Sri Deepak Kumar Jaiswal

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IN THE HIGH COURT OF JHARKHAND AT RANCHI First Appeal No.119 of 2025

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Dr. Pritam Kumari @ Dr. Preetam Kumari aged about 49 years, Wife of Deepak Kumar Jaiswal, D/o. Sri Dinanath Bhagat @ Deenanath Bhagat at present resident of Village-Maheshpur, P.O.-Maheshpur, P.S. Maheshpur, District-Pakur (Jharkhand).

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…. …. Appellant/Respondent/Opposite Party

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Versus Sri Deepak Kumar Jaiswal, S/o. Sri Jaideo Prasad Jaiswal, R/O. Vill. Raghunathpur, P.O.-Raghunathpur, P.S. Poraiyahat, Distt.-Godda (Jharkhand). ..... .... Respondent/Plaintiff/Petitioner

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CORAM : HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE ARUN KUMAR RAI

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------ For the Appellant : Mr. Rajeeva Sharma, Sr. Advocate Mr. Om Prakash, Advocate Ms. Misbiqua, Advocate For the Respondent : Mr. S.P. Roy, Advocate

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------ 08/Dated: 05.12.2025

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Per Sujit Narayan Prasad, J.

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Prayer

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1. The instant appeal under Section 19(1) of the Family Courts Act, is directed against the order/judgment dated 25.06.2024 (decree dated 09.07.2024) passed by the learned Principal Judge, Family Court, Godda in Original Suit No. 123 of 2017, whereby and whereunder, the learned court has allowed and decreed the suit filed by the respondent/ plaintiff/petitioner for dissolution of marriage on the ground of cruelty but not on the ground of desertion.

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2. It requires to refer herein that the suit for dissolution of marriage was earlier allowed in favour of the petitioner-husband/respondent herein by the Principal Judge, Family Court, Godda vide order 20.06.2018 and decree dated 06.07.2018.

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3. The respondent/wife preferred appeal before this Court being First Appeal No.114 of 2019 against the said order dated 20.06.2018 and decree dated 06.07.2018, which has been disposed of, vide order dated 19.04.2023, wherein, the order/judgment dated 20.06.2018 and decree dated 06.07.2018 was set aside by the Co-ordinate Bench of this Court and the matter was remanded to the Principal Judge, Family Court, Godda to pass a fresh order.

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4. On the basis of the aforesaid order dated 19.04.2023 passed by the Coordinate Bench of this Court, the matter has again been heard by the Principal Judge, Family Court, Godda and thereafter judgment was passed on 25.06.2024 (decree dated 09.07.2024) by which the suit for dissolution of marriage filed by the petitioner/husband has been allowed, against which the instant appeal has been preferred by the appellant wife.

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Factual Matrix

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5. The brief facts of the case as inserted in the impugned judgment, required to be enumerated, which read as under:

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It is the case of the petitioner-husband that the marriage of petitioner-husband, namely, Deepak Kumar Jaiswal with opposite partywife, namely, Dr. Preetam Kumari was solemnized on 26.04.2017 according to Hindu rites and customs without any dowry with the consent of both the parties and in presence of guardians. After marriage, opposite party lived with the petitioner at the residence of petitioner and

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lead her conjugal life with the petitioner. Out of the said wedlock one son born on 18.11.2009 and one daughter on 25.06.2015 whose name are Chandragupta and Shreya respectively. The opposite party was posted as lecturer in Govt. Homeopathic Degree College and Hospital Gandhigram Godda from August 2010 and during that period, opposite party was residing at the residence of petitioner at Raghunathpur. After termination of the service, opposite party again went to her ‘naiher’ on the instigation of her father. The petitioner-husband tried many times to bring opposite party in between 22.08.2010 to 03.07.2015, but opposite party refused to come to the house of the petitioner. The petitioner tried to bring opposite party to his house and to meet his children but opposite party refused to come to the house of the petitioner. The own brother of the petitioner, namely, Rajeev Ranjan Jaiswal died on 03.07.2015, opposite party came to the house of the petitioner-husband on 04.07.2015 and again went to her ‘maike’ in August after calling her father. During this period, opposite party used to torture and abuse to the petitioner and his parents, while petitioner was in need of sympathy of the opposite party as brother of petitioner died and he and his own family members were in deep mental depression but opposite party did not care at all. During that period, opposite party and his family members used to insult the petitioner and his family members. Petitioner's family and his relatives tried to convince opposite party many times. The elder sister of opposite party also told to the opposite party on telephone to flee away from the house of the petitioner on any pretext.

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The opposite party-wife is a doctor by profession. Opposite party has opened clinic by residing in the house of her father at Maheshpur, Pakur and she has good income from the practice and due to this reason, she does not want to live with the petitioner. In spite of that, petitioner used to arrange the study of children in proper way. The father of opposite party has big business, he has Hero and Bajaj motorcycle show room, a lodge in the name of Laxmi Lodge, Pushpa marriage hall, market complex, the petitioner was insulted by saying that they have so many employees like petitioner. Opposite party has no any brother, so she used to arrange all business of her father and for this reason she does not want to live with the petitioner. Opposite party has cut off all social relations with the petitioner for last two years and three months, there is no physical relationship in between the petitioner and opposite party for last four years. Opposite party and her father always used to call mad to the petitioner, due to which, petitioner mentally suffered a lot.

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The petitioner-husband was working as an Advocate in Godda Civil Court, but he has left profession due to mental shock and he is living in depression. Opposite party and her father told to the petitioner and to leave old aged mother of the petitioner only then opposite party will come to the house of the petitioner. Oral partition had taken place in between all the brothers of the petitioner-husband, old aged mother of petitioner lives with the petitioner, while opposite party is a cruel lady.

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The petitioner-husband has filed a case under Section 9 of the Hindu Marriage Act in local Family Court, in which, ex-parte order was passed in favour of the petitioner.

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No written statement was filed in the suit and further the witnesses on behalf of the petitioner/husband have also not been crossexamined by the appellant wife. However, the learned court has framed issue, vide order dated 26.04.2018, in which, it has been stated as below:-

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“Whether the petitioner/plaintiff Deepak Kumar

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Jaiswal is entitled for dissolution of his marriage on the ground of desertion and cruelty by passing the decree of divorce with the opposite party / defendant Dr. Preetam Kumari u/s- 13(i-a) (i-b) of the Hindu Marriage Act 1955 or not?”

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6. On the basis of petition of petitioner-husband in the said suit, the following points has been raised to be determined, which has been proceeded Ex-parte .

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( I ) Whether the instant suit is maintainable in its present form?

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(II) Whether cause of action arose in the favour of petitioner?

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(III) Whether respondent has caused cruelty to the petitioner?

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(IV) Whether respondent has deserted the petitioner for a continuous period of not less than two years immediately before the presentation of the petition?

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(V) Whether petitioner is entitled decree of divorce against the respondent on the basis of cruelty and desertion?

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7. The evidences have been led on behalf of the petitioner-husband. Thereafter, the judgment impugned has been passed allowing the suit in favour of the petitioner-husband.

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8. Being aggrieved with the aforesaid, the instant appeal has been filed by the appellant-wife.

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Submission of the learned senior counsel for the appellant-wife:

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9. The ground has been taken that the original judgment of dissolution of marriage was ex-parte as would be evident from the judgment dated 20.06.2018 passed in O.S. No.123 of 2017 which was quashed and set aside by the Coordinate Bench of this Court vide judgment/order dated 19.04.2023 passed in First Appeal No.114 of 2019 and the matter was remanded before the Principal Judge, Family Court, Godda for passing order afresh in accordance with law but the grievance of the appellant is that while passing the order afresh, error was crept up in passing the judgment since the same was based upon the ex-parte proceeding and as such, there was no occasion to the appellant to file written statement and even examine/ cross-examining the witnesses.

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10. But, the learned Family Judge even on remand without taking into consideration the aforesaid aspect of the matter, has not passed the order afresh while reiterating the testimony of the witnesses which was produced on behalf of the respondent-husband.

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11. Learned Senior Counsel, based upon the aforesaid ground, has approached this Court again questioning the judgment passed by the learned Family Judge.

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Submission of the learned counsel for the respondent-husband:

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12. Per contra , learned counsel for the respondent-husband, has submitted that there was no error in the impugned order wherein the order passed vide order dated 25.06.2024, in terms of the judgment passed by the learned Coordinate Bench of this Court as would be evident from paragraph-6 of the impugned judgment dated 25.06.2024 passed in Original Suit No.123 of 2017 thereof and as such, it is incorrect on the part of the appellant-wife to take the ground that fresh order was passed is contrary to the direction passed by this Court, as such judgment impugned requires no interference, hence, the present appeal is fit to be dismissed.

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Analysis:

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13. This Court has heard the learned counsel for the parties and gone through the finding recorded by the learned Family Judge in the impugned judgment.

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14. This Court, in the pretext of the factual aspect herein is to consider the issue of substantial justice which is mandatory requirement of the litigant concerned in a case of prejudicing the right due to deprivation of right to defence.

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15. It requires to refer herein that the primary function of a Court is to adjudicate the dispute between the parties on the basis of substantial justice. A court's duty is to deliver substantial justice, meaning ensuring fair outcomes based on merits. Laws of procedure are meant to regulate effectively, assist and aid the object of doing substantial and real justice and not to foreclose even an adjudication on merits of substantial rights of citizens under personal, property and other laws. The procedure has always been viewed as the handmaid of justice and not meant to hamper the cause of justice or sanctify the miscarriage of justice.

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16. The Hon’ble Apex Court in the case of Sugandhi v. P. Rajkumar, (2020) 10 SCC 706 has specifically observed that the procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation, relevant paragraph of the aforesaid judgment, is being quoted as under:

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“9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing

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substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).”

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17. In the case of Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC 155 the Hon’ble Apex court has observed that “Justice is truth, is beauty and the strategy of healing injustice is discovery of the whole truth and harmonising human relations. Law's finest hour is not in meditating on abstractions but in being the delivery agent of full fairness. This divagation is justified by the need to remind ourselves that the grammar of justice according to law is not little litigative solution”.

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18. Justice is nothing but a manifestation of the truth. It is truth which transcends every other action and when procedural law stands in the way of the truth, the Court must find a way to circumvent it. Similarly, when substantive law, as it appears, does not facilitate the emergence of the truth, it is the paramount duty of the Court to interpret the law. Such an exercise is warranted in a higher degree, particularly while considering a social welfare legislation, reference in this regard be made to the judgment passed by the Hon’ble Apex Court in the case of Om Prakash @ Israel @ Raju @ Raju das Vs. Union of India & Anr., 2025 INSC 43.

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19. In the backdrop of the aforesaid settled position of law, the issue of substantial justice which is mandatory requirement of the litigant concerned in

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a case of prejudicing the right due to deprivation of right to defence is required to be considered on the basis of the admitted factual aspect.

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20. The undisputed fact is that the respondent husband has filed divorce suit being Original Suit No.123 of 2017 which was disposed of while passing the ex-parte decree order vide judgment of decree dated 06.07.2018.

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21. The fact about ex-parte decree has not been disputed on behalf of the respondent-husband.

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22. The Coordinate Bench of this Court has passed order in First Appeal being F.A. No.114 of 2019 vide order dated 19.04.2023 by quashing and setting aside the impugned judgment dated 20.06.2018 and decree dated 06.07.2018 passed in Original Suit No.123 of 2017 with a direction upon the learned Family Judge to pass order afresh in accordance with law.

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23. The learned Family Judge has passed order said to be in terms of the order dated 19.04.2023 after issuance of notice upon both the parties. The said judgment/decree dated 25.06.2024 and 09.07.2024 respectively have been challenged by way of present appeal.

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24. The ground has been taken that once the ex-parte judgment has been passed which has been quashed and set aside by the Co-ordinate Bench of this Court vide order dated 19.04.2023 then the requirement under law to provide an opportunity to the appellant-wife to file written statement by initiating the proceeding at the stage of filing of written statement so that she may have an

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opportunity to make out the case and lead the evidence as also cross-examine the witnesses adduced on behalf of the respondent-husband.

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25. Once the factum of the ex-parte judgment/decree is in admission, then, merely by passing a fresh order by the Family Judge, will not serve the ends of justice. The ex-parte order if has been set aside and in such circumstances, if the fresh order is being passed, then, the said order will also be on the basis of documents available on record and in an ex-parte proceeding, the only document of the plaintiff/husband will be there since the respondent-wife has not got the opportunity to put her defence.

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26. The adjudication means substantial justice and if the parties is intending to contest the case as the facts of the present case herein is which led the appellant to approach this Court by filing First Appeal being F.A. No.114 of 2019 for quashing and setting aside the ex-parte judgment/decree, which has also been accepted by the Coordinate Bench and pursuant thereto impugned judgment of dissolution of marriage has been quashed and matter was remanded for fresh consideration.

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27. But, the direction to pass fresh order by not restoring the proceeding from the stage of written statement, cannot be said to be just and proper taking into consideration the deprivation of right to put defence in the ends of justice.

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28. This Court, is of the view that if the ex-parte decree is being set aside then the proceeding is to be restored by impliedly recalling the ex-parte order, so that, the opportunity is being given to the other side to put her defence to file

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written statement, thereafter, it is incumbent upon the adjudicator, court of law to frame issues by going through the averment made in the plaint as well as the written statement and thereafter to provide an opportunity to the parties to lead the evidence by examination-in-chief and cross-examination.

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29. Herein the facts of the given case are that the ex-parte decree has been admitted by the Coordinate Bench of this Court that led the Coordinate Bench to quash and set aside the ex-parte decree and in pursuant thereto, the learned Family Judge has called upon the appellant-wife but without providing an opportunity to file written statement, has proceeded and passed the impugned judgment ex-parte .

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30. This Court, considering itself not an appellate court of the judgment passed in First Appeal No.114 of 2019, is of the view that in a case of ex-parte order if it is being quashed and set aside, the specific direction is to be passed for restoring the case by recalling the order by which the case has been posted as an ex-parte proceeding.

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31. It is evident from the impugned judgment that the Coordinate Bench has gone into the issue of merit, i.e., the appreciation of the evidence of witnesses and remanded the matter back before the learned Family Judge to pass order afresh in accordance with law.

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32. The aforesaid direction needs no remark by this Court but the paramount consideration for this Court is that substantial justice in a case where the ex-

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parte decree has been quashed and set aside, then what would the right course in the ends of justice to the parties.

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33. Certainly, the right course in a case of setting aside the ex-parte decree will be to recall the order by which the proceeding has been set as ex-parte and to call upon the respondent to file written statement, thereafter, an opportunity is to be provided to cross-examine/examine the witnesses and lead evidence in support of averment made in the written statement.

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34. This Court has found from the impugned judgment that no consideration has been given regarding the opportunity which is required to be provided to the appellant-wife, even though, the judgment and decree considering the same to be ex-parte , has been quashed and set aside.

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35. This Court, therefore, is of the view that the appellant-wife is still at the same status as she was at the time of passing of the impugned judgment dated 20.06.2018 in Original Suit No.123 of 2017.

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36. If the Court will go on technicality by accepting that whatever has been done by the learned Family Judge in terms of the order passed by the Coordinate Bench of this Court, then the same will amount to miscarriage of justice, which has not been considered to be proper.

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37. This Court, in view of the above, is of the view that the impugned judgment needs interference.

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38. Accordingly, the impugned judgment dated 25.06.2024 and decree dated 09.07.2024 passed in Original Suit No.123 of 2017 by the learned Principal Judge, Family Court, Godda, are hereby quashed and set aside.

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39. The proceeding is restored to the stage of filing of the written statement.

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40. The learned Principal Judge, Family Court, Godda is directed to proceed from the stage of filing of the written statement and other stages of framing of issues, leading evidence on behalf of the parties including cross-examination to be done on behalf of respective parties.

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41. Learned counsel appearing for both the parties have agreed to appear before the learned Principal Judge, Family Court, Godda in Original Suit No.123 of 2017 within the period of two weeks from the date of receipt of copy of this order.

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42. Learned Family Judge is to proceed and adjudicate the issue.

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43. In view thereof, the instant appeal stands disposed of.

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44. Pending interlocutory application(s), if any, also stands disposed of.

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(Sujit Narayan Prasad, J.)

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(Arun Kumar Rai, J.)

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05.12.2025 Rohit/- A.F.R . Uploaded on 11.12.2025