Nisha Saw @ Nisha Gupta Vs Ashish Kumar Banka @ Anni

2025:JHHC:37432-DB

IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No. 52 of 2025

Nisha Saw @ Nisha Gupta, Aged about 37 years, W/O-Ashish Kumar Banka, D/o-Vijay Sao, R/O-Shiv Mandir Road, Jharia, P.O+PS-Jharia, District-Dhanbad. … … Respondent/Appellant Versus

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(1) Ashish Kumar Banka @ Anni, S/O-Late Lal Banka, R/O-Banka Bahvan, Iryu Road, Near-Kailesh Mandir, P.O.+P.S-Sukhdeonagar, District-Ranchi.

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(2) State of Jharkhand through S.S.P., Ranchi

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… … Petitioner/Respondent

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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. Pratiush Lala, Advocate For the Respondent : Mr. Amit Kumar Sinha, Advocate ----------------------------

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Order No.08/Dated: 12^th December, 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 Court Act, 1984 is directed against the order/judgment dated 30.09.2024 (decree signed dated 09.10.2024) passed by the learned Addl. Principal Judge, Addl. Family Court No.II, Ranchi in Original Suit No. 789 of 2023, whereby and whereunder, the petition filed by the petitioner-husband (respondent herein) under Section 13(1)(i-a) of the Hindu Marriage Act, 1955 seeking a decree of divorce on the ground of cruelty, has been allowed.

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Facts

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2. The brief facts of the case leading to filing of the divorce petition by the petitioner-husband (respondent herein), needs to be referred herein as under:

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The case in brief as per petition filed by the petitioner-husband (respondent herein) before the learned Family Judge is that the

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plaintiff/husband solemnized marriage with the defendant/wife (appellant herein) on 04.02.2020 at Ranchi according to Hindu rites and rituals. After marriage, the defendant/wife has resided in the matrimonial house where she was treated with love and affection by the plaintiff and his family members.

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The respondent is a make-up artist by profession and she completed her course of Make-up Artist from Delhi. After marriage, the plaintiff/husband took the respondent to Bangkok on Honeymoon but due to sudden outburst of Covid-19 return to India. The behavior of the respondent was change and she treated badly with the petitioner and his family members. The respondent /wife does not participate in the family matter/affairs in the matrimonial house. The respondent rudely misbehaved with the petitioner and threatened the petitioner to implicate in a false case.

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The respondent has relationship with her previous friend and she has been continuous talking term with her male friends. The petitioner objected the behavior and conduct of the respondent but the respondent got furious and used filthy language against him. The respondent has relationship with one Abhishek Sah, Pratham Talvar and other persons and the respondent used to talk on every day with them. The plaintiff suffers mental trauma and agony due conduct of the respondent. The petitioner found several messages and objectionable photographs of the respondent.

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The respondent got pregnant and she went to her maika. The defendant/ respondent continuously demanded money from the petitioner and save the matrimonial life. The petitioner has given money to Ashish Gupta on the request of the defendant. The defendant also practices like

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Magic with the help of Tantrik. The defendant blessed with one child and all the expenses incurred bear by the plaintiff. After birth of child the plaintiff requested the defendant to join him at matrimonial home Ranchi but the respondent refused and stated that if he purchased new car for her, she will go to the matrimonial house.

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On the demand of wife, the petitioner husband purchase a new car but the defendant never come to matrimonial house. The petitioner/plaintiff any how manage to bring the respondent along with the child at matrimonial home but the behavior of the respondent was rude and disrespect the family member. The respondent demanded partition of the ancestral property of the petitioner. The defendant's boyfriend Abhishek has extorted the plaintiff with the help of defendant by showing some photographs.

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The defendant finally left the matrimonial house on 09.07.2022 by taking all the ornaments and went to her Maika along with the child. The defendant sends messages on the social media against the petitioner and defame entire family members. The defendant/wife started making Vlog on the YouTube in which several objectionable contents sent which was highly objectionable and caused mental agony to the petitioner. The plaintiff takes several efforts to bring her back at matrimonial house but all the efforts of the plaintiff went in vain. The respondent continuously sending messages against the petitioner and his family members on the social media which caused social and psychological cruelty to the petitioner and his family members. The petitioner has deprived his conjugal rights due to conduct and desertion of the respondent/wife. Hence, the petitioner husband

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(respondent herein) had filed a suit for dissolution of marriage on the ground of cruelty.

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3. Accordingly, after institution of suit, notice was issued but the defendant/wife has not appeared.

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4. During the Ex-parte proceeding, four witnesses have been produced and examined in support of suit filed by petitioner/husband, i.e., PW 1- Ashish Kumar Banka, petitioner himself, PW 2- Ram Yatan Prasad, PW 3- Satish Kumar Banka, PW 4- Sandeep Kumar.

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5. Following documents have also been filed on behalf of petitioner, i.e.,

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Ext.-1 Marriage Certificate; Ext-2 & 2/1 - Flight and Train Ticket; Ext. 3 & 3/1 - Photographs of petitioner and opposite party; Ext. 4- Bank Statement of Induslnd Bank; Mark-X:- R.C. Book (Owner Book) of Car; Ext. 5-Bank statement of Central Bank of India; Ext. 6-Cognizance order dated 01.05.2024 of Complaint Case No. 6507/2024; Ext. 7 to 15-Copy of Social Media Post (You Tube); Ext. 16 to 19 Copy of Whatsapp Status Screenshot; Ext. 20 Section 65B IEA Certificate; Mark X/1 - Medical reports of petitioner's father; & Ext. 21-Death Certificate of petitioner's father.

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6. The learned Family Judge, in view of the above pleadings, has proceeded ex-parte and framed altogether three issues, which are as follows:

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(i) Whether the petitioner has cause of action to file this suit and this suit is maintainable in its present form?

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(ii) Whether the respondent/Opposite Party has cause cruelty to the petitioner?

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(iii) Whether the petitioner is entitled a decree of divorce in the instant suit on the basis of cruelty and desertion?

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7. The learned Family Court after appreciation of the evidenced led by the plaintiff/husband had passed the judgment by allowing the suit by holding that petitioner (respondent herein) has got valid cause of action for filing the suit and the suit is maintainable for the relief as prayed for by the petitioner. Further, it has been held that the petitioner is entitled to get a decree of divorce on the ground of cruelty, which is the subject matter of the present appeal.

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Submission of the learned counsel for the appellant-wife

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8. It has been contended on behalf of the learned counsel for the respondent/appellant herein that learned Family Court has committed serious illegality by proceeding the case ex-parte without considering that there is no proper service report of receipt of summons by the appellantwife.

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9. The learned Family Court has failed to examine that the respondent husband deliberately given the incorrect name of the appellant wife in the particular portion of the plaint as same is also incorporated in the Impugned Judgment. The name of appellant wife is Nisha Saw but the respondent husband mentioned the name of appellant wife as Nisha Gupta in the plaint.

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10. The husband knowing fully well that the appellant wife is known by the name of Nisha Saw and when Cr.M.P No. 1368 of 2024 filed by the appellant, then in that petition, respondent husband written the name of appellant wife as Nisha Saw but only in order to escape of service of summons, respondent husband written the name of appellant wife as Nisha Gupta.

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11. It has been submitted that the appellant wife has also instituted Original Maintenance Case No. 13 of 2023 seeking maintenance against the respondent husband before the court of Learned Principal Judge, Family Court, Dhanbad and later on, the respondent husband instituted the present Divorce Suit on 01.09.2023 but deliberately not informed to the Learned Principal Judge, Family Court, Ranchi about his appearance in Original Maintenance Case No. 13 of 2023.

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12. It has been submitted that if respondent husband would have informed to the Learned Court in Original Maintenance Case No. 13 of 2023 about institution of Divorce Suit by him then appellant wife would have appeared in the Divorce Case and present Suit would not be proceeded ex-parte.

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13. It is submitted that the respondent husband has appeared in Original Maintenance Case No. 13 of 2023 and examined as R.W.-1 on 02.09.2024 but never disclosed about institution of Divorce Suit by him, rather, accepted the fact of ‘Bidaai’ of appellant wife along with him, for which, evidence of respondent was deferred on 22.11.2024 and later on, when respondent husband was further cross-examined on 03.01.2025 then only respondent husband informed to the Learned Court about institution of Divorce Case and not informing about the same, therefore that the conduct of the respondent husband is malicious and malafide by not disclosing to the court about institution of the Divorce Case and same also amounts to misleading the Learned Court.

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14. It has been submitted that the issue of cruelty and desertion have not been taken into consideration in right perspective as the learned Family Court has failed to appreciate the fact that the petitioner/husband has produced evidences which are not sufficient to establish the case and further, since

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the learned Family Court has proceeded ex-parte while passing the order impugned which is not sustainable in eye of law because proper service of summon has not been effectuated to the appellant wife and she has been deprived from the opportunity of defence due to misinformation given by the respondent-husband to the learned Family Court.

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15. Further, the learned Court below ought to have considered that no case under Section 13(1)(i-a) of Hindu Marriage Act, 1955 is made out and as a matter of fact, it was the respondent husband who has committed torture and cruelty upon the respondent wife and driven her out from the matrimonial house but the said fact has not been appreciated by the court because the appellant wife has been maliciously deprived from the defence.

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16. It has been submitted that the appellant wife was always ready and willing to restore her marital life along with the respondent husband as there is female child out of the wed-lock and it was for the betterment of the child also, the parents would reside together and family life will be restored.

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17. Learned counsel for the appellant, based upon the aforesaid grounds, has submitted that the judgment impugned suffers from an error as such, not sustainable in the eyes of law.

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Submission of the learned counsel for the respondent-husband

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18. It has been contended on behalf of learned counsel for the respondenthusband that it is incorrect on the part of the appellant-wife to take the ground that the issue of cruelty has not been taken into consideration in right perspective. The learned Family Court has well considered the fact which has been produced by the petitioner (respondent herein) as the, same is sufficient to establish the case.

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19. It has been submitted that the appellant-wife had not chosen to appear and contested the suit deliberately and in spite of the issuance of notice and publication of notice in the daily local newspaper, she did not appear and the Court had no option but to proceed to decide the issue on merit. The learned Family Judge has proceeded and decided the matter on the basis of the material available on record, as such, it cannot be said that the judgment suffers from any error.

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20. The argument has been advanced that it is not available for the appellantwife to take the ground by raising the impropriety in the impugned judgment once she has chosen not to appear before the learned Family Court.

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21. Learned counsel for the respondent-husband, based upon the aforesaid grounds, has submitted that the judgment impugned passed by the learned Family Judge, therefore, suffers from no error.

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Analysis:

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22. We have heard the learned counsel for the parties as also the finding recorded by the learned Family Judge in the impugned judgment as also the records of the learned Family Judge.

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23. The case has been heard at length. The admitted fact herein is that the suit for divorce has been filed by the respondent-husband on the ground of cruelty, i.e., by filing an application under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 and the appellant wife has not appeared there and thereafter, matter was proceeded ex-parte.

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24. Accordingly, issues have been framed by the Family Court primarily the issue no.(ii) pertains to cruelty. The evidence has been led on behalf of the petitioner-husband (respondent herein). Altogether four witnesses have been examined on behalf of the petitioner-husband, i.e., PW 1- Ashish Kumar Banka, petitioner himself, PW 2- Ram Yatan Prasad, PW 3- Satish Kumar Banka, PW 4- Sandeep Kumar.

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P.W.1, Ashish Kumar Banka, petitioner himself , has

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deposed that the opposite party/respondent is her wife and marriage was solemnized on 04.02.2020 at Ranchi according to Hindu Rites and rituals. The marriage was solemnized with the intervention of one Urmila Devi, in which there was no demand of dowry. After marriage, the respondent/wife came to his house and started residing a peaceful conjugal life. Further, it has been deposed that after marriage, he went to honeymoon on request of respondent/wife to Bangkok and returned to India due to sudden outbreak of Covid-19. The behavior of the respondent wife suddenly changed and she was not ready to cooperate in day-today work of house.

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He further deposed that the respondent/wife is a professional make-up Artist and got certificate from Delhi. She was also a Vlogger. He further deposed that the respondent always busy and talking with several friends. The respondent got furious when she asked the person whom she was talking. The respondent has several relationships and she continued to talk after marriage despite the protest. The respondent herself admitted that she wanted to marry with Abhishek Sah but unfortunately, it was not

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happened and she has also admitted that she does not like me. He deposed that the respondent has boyfriend and he found several photographs and messages which was highly objectionable. Out of wedlock, one girl child born and on the request of respondent, he was given money to his brother Ashish Gupta on different occasions. The respondent has also contacted with Tantarik and he performed Pooja and other activity which he does not like. The baby was born at her ‘Maika’ and he wanted to bring her back Ranchi but the respondent fixed a condition that when he purchased a new car for her, then, she will go to Ranchi.

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He has also deposed that on the demand of respondent/wife he purchased new car. He deposed that despite the fulfill of demand of respondent, she was not ready to reside at Ranchi with him. He has deposed that the boyfriend of respondent, namely, Abhishek tried to blackmailing him by showing photographs with respondent and he was given Rs. 1,25,000/- to Abhishek not to disclosed such photographs in a public domain. He deposed that the respondent was very cruel and she used to assault and beat him and also tried to defame. He deposed that on 09.07.2022, respondent left the matrimonial house by taking all the belongings despite the request she was remained there and not ready to reside with at matrimonial house. He deposed that the respondent at Maika used to defame him by sending messages in her vlog.

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He has further deposed that the respondent used filthy language in the Instagram, Facebook and Whatsapp and in consequences, he suffers a great mental agony. He filed several

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documents in supports of his contentions. He deposed that he came to know that the family of the respondent has practiced to implicate the person and tried to extort money from them. He deposed that due to torture and a mental agony of the respondent, his father died on 20.07.2021. He tried to take several efforts to save the matrimonial life but the respondent was not ready and continuously living separately and from there, she defamed him and his family members. He deposed that he was living separately since 09.07.2022 with the respondent-wife and there was no cohabitation or relationship with the respondent. He suffers great mental agony and also deprived from his conjugal rights.

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P.W.2, Ram Yatan Prasad , deposed that petitioner Ashish Kumar Banka filed this divorce case against her wife Nisha Gupta.

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The marriage of petitioner and the respondent solemnized on 04.02.2020 at Ranchi according to Hindu Rites and rituals. There was no demand of dowry in the said marriage. He deposed that after marriage, the petitioner always under depression and on query, he has stated that her wife-Nisha was not residing at matrimonial house and she always misbehaved with him and with the family members. He deposed that the respondent called him at Maika and tried to make inquiry about the property owned by the petitioner. He deposed that he is a Financial Advisor and the respondent asked him to arrange property and transfer in her name. He deposed that he refused the proposal and came back but he saw that respondent always misbehaved and shouted on the petitioner and also demanded property in her name. He deposed that on

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09.07.2022, he came to know that the respondent finally left the matrimonial house by taking all the belongings and till date, she has not been returned to her matrimonial house. The petitioner took several efforts to bring her back but the respondent-wife posted several contents and messages in the social media and defamed the petitioner and his family members. The respondent always made pressure on the petitioner to get partition of ancestral property and transferred the said property in her name. The petitioner suffers mental agony due to conduct of the respondent.

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PW 3, Satish Kumar Banka , has deposed that he is the brother of the petitioner. The marriage of the petitioner with respondent solemnized on 04.02.2020 at Ranchi according to Hindu rites and rituals. After marriage the respondent came to his matrimonial house. The respondent was a make-up artist and she has relationship with other persons. After marriage, the petitioner went to Bangok for honeymoon on the demand of respondent on 07.03.2020 and due to sudden outbreak of Covid-19 they returned to India. The behavior of the respondent/wife suddenly changed and she was very cruel and misbehaved with the petitioner. She was not ready to performed the matrimonial obligations at the matrimonial house and continuously taking with her friends. The petitioner suffers great mental agony due to conduct of the respondent. The respondent has relationship with Abhishek Sah before the marriage and after marriage she was in the said relationship. The petitioner found several objectionable photographs and messages of the respondent and he advised the

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respondent not to indulge such thing but the respondent was furious used filthy language against the petitioner. The petitioner on the demand of respondent given money to Ashish Gupta on the several occasions. The respondent has also relationship with one Tantrik, which the petitioner does not like. He deposed that out of wedlock one girl child was born, the petitioner requested the respondent to join conjugal life at Ranchi but the respondent refused and demanded to purchase a new car for her. The petitioner tried to save the matrimonial life and purchased one new car but the respondent was not ready to reside with him at Ranchi. The respondent was a Blogger and sent several messages to defame the petitioner and his family members. He deposed that on 09.07.2022, petitioner left the matrimonial house by taking all the belongings and since then, the petitioner living separately from the respondent. The respondent sent several messages and made a Blog which defamed the petitioner, the said messages send to Instagram, Facebook, Whatsapp and other social media which caused mental stress to the petitioner. The petitioner tried to save the matrimonial life and requested the respondent to join the conjugal life with him but all the efforts went in vain. The respondent continuously sent messages on the social media and defamed the petitioner.

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PW 4, Sandeep Kumar , has deposed that marriage of the

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petitioner with respondent solemnized on 04.02.2020 at Ranchi according to Hindu rites and rituals. After marriage, the petitioner went to honeymoon on the request of respondent. He deposed that

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the petitioner told him that the respondent and his friend Abhishek tried to blackmailing by threatening that the photographs of the respondent will be viral if the demand was not fulfilled. The petitioner given Rs. 1,25,000/- to Abhishek on the request of respondent. The respondent has also relationship with one Tantrik and the said Tantrik performed practice to finish the petitioner. The conduct of the respondent was cruel towards the petitioner. The petitioner stated him that respondent was a vlogger and she was in relationship with several persons. The respondent never performed her matrimonial obligation at the matrimonial house of the petitioner. The petitioner was under depression. The respondent left the matrimonial house without informing the petitioner and she has been residing separately from the petitioner. He deposed that the respondent sent messages on the social media and defamed the petitioner. The petitioner suffers mental agony and deprived his conjugal rights due to desertion of the respondent.

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25. The learned Family Court, after appreciation of evidences led by the respondent husband has passed the decree for dissolution of marriage in favour of the respondent/husband, against which, the present appeal has been filed.

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26. In backdrop of the aforesaid factual aspect, it is evident that that the suit for divorce has been filed by the respondent-husband on the ground of cruelty, i.e., by filing an application under Section 13(1) (i-a) of the Hindu Marriage Act, 1955 and the appellant wife has not appeared there and thereafter,

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matter was proceeded ex-parte and the evidence led by the respondent husband has not been controverted by the appellant wife.

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27. The foremost ground as has been taken by the learned counsel for the appellant that the impugned judgment and decree have been passed ex-parte without effective service of summon and, as such, we have not gone through the issue on merit, rather, we have confined ourselves only on the issue of the fact that ‘as to whether the impugned judgment and decree can be said to be passed without effective service of summon or without giving opportunity to the appellant wife.’

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28. It requires to refer herein that 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 this First Appeal.

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29. 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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30. 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

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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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31. 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 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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32. In the case of Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2 SCC

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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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33. 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

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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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34. In the backdrop of the aforesaid settled position of law, 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 is required to be considered on the basis of the admitted factual aspect.

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35. The undisputed fact is that the respondent-husband has filed divorce suit being Original Suit No.789 of 2023 on the ground of cruelty and vide order/judgment dated 30.09.2024 (decree signed dated 09.10.2024) passed by the learned Addl. Principal Judge, Addl. Family Court No.II, Ranchi, the said suit has been allowed.

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36. The fact about ex-parte decree has not been disputed.

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37. In the backdrop of the aforesaid settled position of law, 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 is required to be considered on the basis of the admitted factual aspect.

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38. This Court has gone through the order-sheets as available in the Trial Court Records in order to come to the conclusion; ‘as to whether the notice/summon which is being said to be not effectively served to the appellant is actually substantiated by the order passed by learned Family Court’.

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39. Further, this Court has perused the record and found from the order dated 13.09.2023 by which the notice was issued upon the respondent. The notice was delivered from the office of the concerned court on 20.09.2023.

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40. The matter was listed on 30.11.2023 and on that date, the postal receipt and the track report was filed on behalf of the respondent husband. It has been taken note by the concerned court that the registered notice has returned without service. It has been referred in the order dated 30.11.2023 that the steps have also been taken through CIS and the matter was posted on 15.12.2023 awaiting service report.

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41. Further, when the matter was posted on 15.12.2023, the respondenthusband has filed a petition for publication of notice which had been allowed. The respondent/husband had filed copy of the publication of notice, as would appear from the order dated 30.01.2024.

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42. It is apparent from the order dated 12.02.2024 that the notice on opposite party is assumed sufficient. The case was fixed for ex-parte hearing and the matter was posted on 22.02.2024 for ex-parte evidence. For ready reference, all these orders of the learned Trial Court are being referred hereinbelow:

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“13-09-2023:

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Petitioner filed requisites of notice. O/C to issue notice. Put up on date fixed.

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30-11-2023:

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Postal receipt and track report filed by petitioner. Registered notice has returned without service O/C to ensure notice through CIS. Put up on 15.12.2023 awaiting S/R.

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15.12.2023:

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Petitioner is in attendance and files a petition for publication of notice which is allowed. Petitioner to take

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steps for publication of notice for appearance of O.P. Put up on 30.01.2024 for filing of copy of publication.

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30.01.2024: Petitioner files copy of publication of notice. Keep it on record. Put up on 12.02.2024 for appearance.

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12.02.2024:

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Attendance filed on behalf of petitioner.

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Heard and perused the case record. Notice on O.P. is assumed sufficient. Case is fixed for ex-parte hearing. Put up on 22.02.2024 for ex-parte evidence.

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22.02.2024:

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Attendance filed on behalf of petitioner. Petitioner to adduce evidence. Put up on 06.03.2024 for ex-parte evidence.”

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43. This Court has found from the order-sheet as referred hereinabove that the learned Trial Court has proceeded without following the settled norms as provided under the Civil Procedure Code for effective service of notice for the reason that even though, the learned Family Judge has taken note in the order, particularly in the order dated 30.11.2023 posting the case awaiting the service report but there was no service report, as is being referred in the office note, as available in the column no.4 of the format of the order-sheet and on 15.12.2023, a petition was filed for notice through substituted mode which had been allowed and based upon the paper publication, the case has been posted for ex-parte hearing.

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44. At this juncture, it would be apt to refer herein the relevant provisions of Order V as stipulated in Civil Procedure Code. Order 5 Rule 17 and 20 provide as follows:

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“ 17. Procedure when defendant refuses to accept service, or

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cannot be found .—Where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no

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agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed.”

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20. Substituted service .—(1) Where the Court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court House, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit.

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[(1-A) Where the Court acting under sub-rule (1) orders service by an advertisement in a newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain.] (2) Effect of substituted service .—Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally.

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(3) Where service substituted, time for appearance to be fixed .—Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.”

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45. Thus, Order 5 Rule 17 of the Code of Civil Procedure (CPC) deals with substituted service by affixture, allowing a court to deem a summons served if the defendant or agent refuses it, or the defendant can't be found after due diligence, by sticking a copy to their door, followed by a detailed report from the serving officer to the court.

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20

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46. Further, it is evident that before ordering for substituted service through publication under Order 5 Rule 20 CPC, the trial Court under statutory obligation to record reasons germane for justification of compliance of Rule 20 CPC.

¶157

47. Further, it is settled position of law that Order 5 Rule 20 requires the Court to be satisfied either that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service or that for any other reason, the summons cannot be served in the ordinary way. Reference in this regard be made to the judgment rendered by the Hon’ble Apex Court

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in the case of Smruti Pahariya v. Sanjay Pahariya , (2009) 13 SCC 338. The Hon’ble Apex Court has further observed that the Court must apply its mind to the requirements of Order 5 Rule 20 and its order must indicate due consideration of the provisions contained in it.

¶159

48. It needs to refer herein that the purpose of issuance of notice is to apprise the party to the suit so that the said party may appear in the suit and defend himself/herself and merely the issuance of notice cannot be construed to be effective service of notice.

¶160

49. Herein, the appellant-wife had asserted that in absence of knowledge, she could not appear and therefore, could not file her written statement opposing the prayer of plaintiff/husband (respondent herein).

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50. It has come on record that the appellant wife has also instituted Original Maintenance Case No.13 of 2023 seeking maintenance against the respondent husband before the Court of Learned Principal Judge, Family Court, Dhanbad but the respondent husband had not informed to the Learned Principal Judge, Family Court, Ranchi about his appearance in said

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21

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Maintenance Case in order to avoid the proper service of summons upon the appellant-wife.

¶165

51. Further, it requires to refer herein that the respondent husband has appeared in Original Maintenance Case No. 13 of 2023 and examined as R.W.-1 on 02.09.2024 but never disclosed about institution of Divorce Suit by him, rather, he stated that he wants to live with his wife with full dignity.

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52. Further, it is evident that the respondent husband has filed divorce petition making serious allegations against the wife/appellant.

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53. Having regard to the nature of allegations levelled against the appellantwife, we are of the view that the Family Court ought to have taken all possible steps in effecting proper service of summon upon the appellantwife as per the mandate of the Order V of the CPC and so as to afford opportunity to the appellant-wife to contest the matter on merit.

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54. Thus, on the basis of the discussion made hereinabove, this Court is of the considered view that the impugned judgment and decree passed by the learned Family Judge suffers from non-compliance of cardinal principle of natural justice.

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55. 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 effectively take all statutory provisions into account which is expected for appearance of the party.

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22

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56. 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 has not effectively followed all recourse available in the statute and as such, the impugned judgment and decree need interference on the ground of providing an opportunity to the appellant-wife to defend herself (respondent before the learned Family Court).

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57. This Court, considering the aforesaid fact, is of the view that the judgment passed by the learned Family Court, therefore, needs interference.

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58. Accordingly, order/judgment dated 30.09.2024 and decree dated 09.10.2024 passed in Original Suit No.789 of 2023 by the learned Addl. Principal Judge, Addl. Family Court No.II, Ranchi, are hereby quashed and set aside.

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59. In the result, the instant appeal being First Appeal No.52 of 2025 stands allowed.

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60. In consequence thereof, the matter is remitted before the concerned learned Family Court for consideration of the issue afresh, in accordance with law.

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61. Both the parties are hereby directed to appear before the learned Family Court.

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62. The learned Addl. Principal Judge, Addl. Family Court No.II,, Ranchi is directed to proceed and decide the issue in accordance with law by giving sufficient opportunity to the parties.

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63. Let the issue be decided without any unnecessary delay.

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64. Let the Trial Court Records be sent back forthwith.

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23

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

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(Sujit Narayan Prasad, J.)