Allowed
Priyanka Jaiswal v. Abhishek Prasad
Jharkhand HCFA/113/2026
Case brief
from the order text
What is this about?
Citation No. ( 2026:JHHC:11676-DB ) 1 IN THE…
What the court decided
AI extract
Citation No. ( 2026:JHHC:11676-DB ) 1 IN THE…
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Neutral Citation No.
( 2026:JHHC:11676-DB )
IN THE HIGH COURT OF JHARKHAND AT RANCHI F.A. No.113 of 2026
Priyanka Jaiswal ..… Petitioner/Appellant Versus Abhishek Prasad ….. Defendant/Respondent
---------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON'BLE MR. JUSTICE SANJAY PRASAD
For the Appellant : Mr. Shyam Narsaria, Advocate For the Respondent : Mr. Sharad Kaushal, Advocate
07/17.04.2026
Per Sujit Narayan Prasad, J:
The instant appeal has been filed on behalf of the appellant under Section 19(1) of the Family Courts Act, 1984 against the order/judgment dated 06.01.2025 and Decree dated 13.01.2025, passed by the learned Principal Judge, Family Court, Ranchi in Original Suit No. 385 of 2024, whereby and whereunder, the said Suit filed by the Respondent-husband under the provisions of Section 9 of the Hindu Marriage Act, 1955 against his wife has been allowed.
Factual Matrix
2. The brief facts of the case is that the marriage between the parties was solemnized on 29.11.2008 in accordance with Hindu rites and rituals at Ranchi. After solemnization of marriage the Appellantwife came to her matrimonial home and started leading conjugal life with Respondent-husband and out of wedlock a female child, namely, Aanya Sahu was born on
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08.11.2009, who is at present about 14 years old and pursuing her studies at Loretto Convent, Doranda, Ranchi in Class-IX.
3. The respondent-husband belongs to a well reputed family and he has his own house at Indrapuri, Road No. 1. Ratu Road, Ranchi. After the death of his father only the appellant-wife, the respondent-husband, the daughter and old mother of the respondent herein remained in the family. After marriage the respondenthusband always tried to fulfill the demands of the appellant-wife and tried his best to maintain his family members and after marriage conjugal life of the appellant and the respondent was going on smoothly and peacefully, but after birth of the daughter, behaviour of appellant-wife suddenly changed which led to mismatch of temperament of the appellant and the respondent.
4. In the meantime, the appellant-wife completed her Beautician course in which the respondent-husband incurred more than Rupees One (01) Lakh in the year 2018. Thereafter, the appellant-wife started neglecting the respondent husband, her daughter and her old mother and she used to keep herself busy with her clients and some other persons. 5. The respondent-husband and his family members suggested the appellant-wife for second baby but she did not agree and with a view to leave her matrimonial home the appellant herein intentionally and
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knowingly started quarrelling with the respondenthusband and and left her matrimonial home along with the daughter on 18.02.2021 at about 9.00 P.M. along with all her belongings and jewelleries and other valuable articles by calling her mother and sister and she went to her paternal home and since then the appellant is residing there without any cogent reason and on her own will and desire. 6. The respondent-husband approached the appellant several time and requested her to return back to her matrimonial home and resume conjugal life with him but she did not pay any heed and expressed her desire to take divorce from him. 7. On 17.01.2023, appellant-wife put several terms and conditions before the petitioner/respondent husband for leading conjugal life with the petitioner/respondent husband. The respondent-husband also prepared counter agreement through which he expressed his desire that he is still ready and want to continue his marital life with the appellant-wife without terms and conditions. 8. Due to the disturbance in their marital life, career of their daughter was getting disturbed. The respondent-husband has love and affection towards the appellant-wife and his daughter and he is desirous to lead happy and prosperous life with the appellant-wife and his daughter Aanya Sahu, but the appellant-wife always showed her unwillingness
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to live with her in-laws and as such, the appellant wife completely deserted the respondent-husband since 18.02.2021.
9. Notice was issued to appellant-wife but she did not appear before the Court to contest this suit, hence, vide order dated 26.09.2024 the proceeding was fixed for ex-parte hearing against the respondent/ appellant-wife.
10. In absence of any pleading on behalf of the appellant-wife (respondent in the Suit), issues have not been framed in the present case. However, following points were adjudicated, which were as follows:-
11. The petitioner/ respondent-husband in support of his case has examined two witnesses, who are Abhishek Prasad as PW-1, i.e. the respondenthusband himself and Anup Bharti, friend of the respondent-husband as PW-2.
12. Learned Family Judge, after institution of the said case, taking into consideration
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the pleading of the petitioner/ respondent-husband has decided the lis by granting a decree for restitution of conjugal rights in favour of the petitioner-husband (respondent herein).
13. The aforesaid judgment by which the decree for restitution of conjugal rights has been granted in favour of the petitioner-husband (respondent herein) is under challenge by filing the instant appeal.
Argument advanced on behalf of the Appellant-wife.
14. It is submitted that the learned court below committed error the basic gross ignoring procedure regarding service of notice upon appellantwife and even learned trial court did not waited for Goswara report for service of notice on appellant nor taken any steps for paper publication for ensuring the appearance of the appellant-wife.
15. It has further been contended that while passing the judgment and decree the learned family judge has not provided any opportunity to the defendant/appellant to defend the case as she has never received any notice and she had no knowledge about the present case.
16. It has further been contended that the learned Family Court without following the procedure stipulated for service of notice has held the proceeding to be ex-parte by making a remark that even after issuance of notice upon the defendant-appellant herein, the defendant did not appear.
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17. It has further been contended that the learned Family Judge has taken the issue very casually and without ascertaining the proper service report and even by not asking the party to go for the substituted service of notice, has held the proceeding to be ex-parte and passed the impugned judgment/decree contrary to her interest and, as such, vital rights have been taken away from the defendant-appellant to defend herself. Therefore, the impugned judgment/decree is fit to be quashed and set-aside.
Arguments advanced on behalf of the respondent husband
18. While on other hand, the Learned counsel for the respondent husband has submitted that there is no error in the impugned judgement as the learned Family Judge has considered the entire issue and on the basis of evidence has passed the order impugned, as such, same may not be interfered with. 19. It has also been contended that the steps as prescribed in the law have been taken by the learned family judge and the notice has also been sent through proper channel and the report has been placed before the learned Family Judge and the learned Family Judge based upon that said report, which has substantiated the service of notice, has accepted the notice to be validly served, hence, held the proceeding ex-parte and, thus, it is incorrect on the part of the
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appellant to take ground that holding the proceeding to be ex-parte, suffers from an error.
20. Learned counsel, based upon the aforesaid grounds, has submitted that the learned Family Judge has rightly recorded its finding that the respondent-husband has since beginning always tried his best to lead a happy conjugal life but it is the appellant-wife who at every moment of time avoided him, hence, the impugned judgment cannot be said to suffer from an error.
Analysis
21. This Court has heard the learned counsel for the appellant and the respondent and gone through the findings recorded by the learned Family Judge in the impugned judgment.
22. Since the instant appeal has been contesded on the ground of holding the proceeding to be ex-parte and, as such, this court is not going upon the testimony of the witnesses rather thought it proper to consider the rival submissions made on behalf of the parties, in order to reach to the conclusion as to whether holding the proceeding to be an ex-parte against the defendant, the appellant herein, is just and proper.
23. Before entering into merits of the case, it would be apt to refer herein that under Section 7 of the Family Courts Act, the Family Court shall have and exercise all the jurisdiction exercisable by any
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District Court or any Sub-ordinate Civil Court under any law for the time being in force in respect of suits and proceedings of the nature which are described in the explanation to Section 7(1).
24. Sub-section (1) to Section 19 of the Family Courts Act provides that an appeal shall lie from every judgment or order not being an interlocutory order of a Family Court to the High Court "both on facts and on law". Therefore, section 19 of the Family Courts Act is parallel to section 96 of the Code of Civil Procedure, the scope of which has been dealt with by the Hon'ble Apex Court in catena of judgments. 25. The law is well settled that the High Court in a First Appeal can examine every question of law and fact which arises in the facts of the case and has powers to affirm, reverse or modify the judgment under question. In "Jagdish Singh v. Madhuri Devi" (2008) 10 SCC 497 , the Hon'ble Supreme Court observed that it is lawful for the High Court acting as the First Appellate Court to enter into not only questions of law but questions of fact as well and the appellate Court therefore can reappraise, reappreciate and review the entire evidence and can come to its own conclusion. For ready reference, the relevant paragraph of the said judgment is being quoted as under:
"It is no doubt true that the High Court was exercising power as the first appellate court and hence it was open to the Court
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to enter into not only questions of law but questions of fact as well. It is settled law that an appeal is a continuation of suit. An appeal, thus is a rehearing of the main matter and the court can appellate reappraise, reappreciate and review the entire evidence--oral as well as documentary--and can come to its own conclusion."
26. Now, we are proceeding to the factual aspects of the case. The fact about the non-appearance of the appellant-wife is not in dispute. Further it is evident from paragraph 1 of the impugned judgment that the petition before learned Family Court was filed on 27.05.2024 under Section 9 Hindu Marriage Act 1955 and the same was admitted for hearing on 28.05.2024.
27. Further it has been mentioned in paragraph 3 of impugned judgment that “From perusal of case record it appears that Notice to respondent was issued through various means. The Registered Notice has also been delivered to her on 03.06.2024 but she did not opt to appear before the Court to contest this suit, hence, vide order dated 26.09.2024 the proceeding was fixed for ex-parte hearing against the respondent. ”
28. Thus, from the aforesaid it appears that learned Family Court has relied upon the delivery of registered notice to the respondent/appellant which has
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been delivered on 03.06.2024 and thereafter vide order dated 26.09.2024 the proceeding was fixed for ex-parte hearing against the respondent/appellant herein.
29. However, in the aforementioned paragraph, this Court finds that the learned Family Court has not recorded whether the requisite legal procedures, as stipulated under law, were duly complied with to secure the presence of the respondent-wife, who is the appellant herein.
30. It is also settled that the Court is required to issue notice for the purpose of securing appearance of the concerned parties. The procedure to secure appearance is provided under Order V of the Code of Civil Procedure, 1908. Section 18 of the Family Courts Act, 1984 provides the applicability of the procedural law as available in the Code of Civil Procedure, 1908.
31. The requirement, as per the law as provided under the Code of Civil Procedure, 1908 for the purpose of securing the appearance of the parties, it is the duty of the court to take all effective measures to secure the appearance of the parties concerned, i.e. by issuance of notice through registered post or through ordinary process and if on the basis of the settled procedure as laid down for securing the appearance, even the parties are not appearing, then the order is to be passed that too on the basis of application which is to
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be made by the party to go for the substituted service of notice through paper publication.
32. This Court is conscious with the settled position of law that the ex-parte hearing is the requirement as per the statute but before reaching to such conclusion, it is the bounden duty of the concerned court to take effective steps for service of notice upon the concerned party so that the appearance must be secured. However, even if effective service of notice is being taken but the concerned party has chosen not to appear then the recourse is to be taken by switching over from the mode of service of notice by way of paper publication.
33. There is wide difference in between valid service and deemed service and before reaching to the conclusion of deemed service all the parameters laid down in the Code of Civil Procedure strictly to be adhered to. If there will be any bypass of the process and in absence thereof any adjudication is being made then it is nothing but miscarriage of justice.
34. Further, 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
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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.
35. 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 order is being quoted as under:
“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
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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).”
36. 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.
37. 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 in light of its teleos. 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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38. In the backdrop of the aforesaid factual aspect and legal position, it would be apt to discuss herein the object and scope of decree of restitution. The object of restitution decree was to bring about cohabitation between the estranged parties so that they could live together in the matrimonial home in amity. The leading idea of Section 9 was to preserve the marriage. For ready reference Section 9 of the Hindu Marriage Act is being referred as under:
"9. Restitution of conjugal rights.-- When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. [Explanation.--Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.]"
39. From perusal of the aforesaid provision, it is evident that if either the husband or the
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wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, before the court concerned, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and further taking into consideration the legal ground that why the application should not be granted, may decree restitution of conjugal rights accordingly.
40. Further, in explanation part of the said provision, it has been prescribed that when a question arises whether there has been "reasonable excuse" for withdrawal from the society, the burden of proving "reasonable excuse" shall be on the person who has withdrawn from the society.
41. Thus, on the basis of aforesaid settled position of law, it is evident that the court will grant a decree for restitution of conjugal rights when one spouse has withdrawn from the other's society without reasonable excuse. This means if a husband or wife leaves the marital home or refuses to live with their spouse without a justifiable reason, the other spouse can petition the court for this remedy. The court, if satisfied with the truth of the petition and finding no legal barrier, may order the withdrawing spouse to return and resume cohabitation.
42. It is evident that that learned Family Court has relied upon the delivery of registered notice to the respondent/appellant which has been
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delivered on 03.06.2024 and thereafter vide order dated 26.09.2024 the proceeding was fixed for ex-parte hearing against the respondent/appellant herein.
43. However, this Court finds that the learned Family Court has not recorded its satisfaction that whether the as requisite legal procedures, stipulated under law, were duly complied with to secure the presence of the respondent-wife, who is the appellant herein.
44. Further, the evidence of the respondent-husband and his witness has remained intact as no one appeared on behalf of the appellant-wife to controvert the statement made by the respondenthusband and his witness.
45. Further, as per the Explanation to Section 9 of the Hindu Marriage Act, 1955, the burden of proving reasonable excuse for withdrawal from the society of the respondent-husband lies on the person who has withdrawn from the society. In the present case, it has been alleged that wife has withdrawn from the society of husband, but since appellant-wife has not appeared in the Original Suit, so it cannot be determined as to whether there was any reasonable excuse for leaving matrimonial life and living separately.
46. Further, it needs to be referred herein that the case which is related to the matrimonial dispute is a serious matter and it connects entire life of a husband or a wife, against whom a decree has been
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sought for. In the said matter, the court should not follow mechanical approach, rather the court should take all statutory provisions into account which is expected for appearance of the party.
47. This Court is dealing with the issue of matrimonial dispute where the valuable right to defend is available to the opposite party to the Suit and if the procedure which has been adopted by the learned Family Judge, putting the case for ex-parte proceeding and thereafter passing the judgment /decree, will be approved then it is nothing but miscarriage of justice so far as the appellant wife is concerned, who is the defendant to the Suit.
48. This Court, based upon as has been referred to hereinabove, thinks that since the appellant herein is the wife and a contesting party upon whom the allegation has been levelled by filing an application under Section 9 the Hindu Marriage Act, 1955, she ought to have been given all effective opportunities to contest the case by taking effective measures for the purpose of securing her appearance.
49. Learned Family Judge has not taken due care under the established procedure of law for effecting the service of notice upon the appellant-wife in the factual situation that the present lis was filed under Section 9 of the Hindu Marriage Act, 1955 and, further no efforts have been taken for other mode of service of notice which is apparent from the impugned order.
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50. This Court, in exercise of the appellate jurisdiction and after going through the impugned judgment, is of the view that there is no reference made in the impugned judgment for reaching on the issue of satisfaction before posting the matter for ex-parte proceeding, as such, the impugned judgment and decree needs interference on the ground of providing an opportunity to the defendant/wife to defend herself (the appellant herein).
51. Thus, the judgment dated 06.01.2025 and Decree dated 13.01.2025, passed by the learned Principal Judge, Family Court, Ranchi in Original Suit No. 385 of 2024, filed under Section 9 of Hindu Marriage Act, 1955 by the respondent-husband, being an ex-parte order, as admitted also by the respondent-husband, is, hereby, quashed and set aside.
52. The Original Suit No. 385 of 2024 is restored to its original file for adjudication of the lis after hearing the parties in accordance with law.
53. The learned counsel(s) appearing for both the parties have undertaken to put their appearance before the learned Principal Judge, Family Court, Ranchi within three weeks from the date of receipt of the copy of this order.
54. At this juncture, it is submitted by learned counsel for the respondent that husband has already filed Original Suit under Section 13(1)(ia) and 13(1)(ib) of Hindu Marriage Act, 1955, being Original
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Suit No. 152 of 2026, now pending before the learned Additional Principal Judge-II, Ranchi.
55. The learned counsel appearing for the appellant-wife submitted that the Notice has been received by her counsel in the Original Suit No. 152 of 2026, but as yet appearance has not been made and the same will be made before the next date of listing.
56. It has also been submitted that since the Original Suit No. 385 of 2024 has already been restored to its original file and on its restoration the case will be revived to the file of Principal Judge, Family Court, Ranchi and as the Original Suit No. 152 of 2026 is presently pending before the learned Additional Principal Judge-II, Ranchi, therefore, it will be just and proper if a direction is passed that the Original Suit No. 385 of 2024, consequent upon its revival, will be heard along with Original Suit No. 152 of 2026, which is now pending before the learned Additional Principal Judge-II, Ranchi.
57. This Court has considered the aforesaid submission to be just and proper in view of the fact that both the suits are being interrelated.
58. Under the circumstances, this Court, considering the aforesaid fact of both the suits being inter-related, thinks it just and proper that both the suits should be heard together.
59. Therefore, the learned Principal Judge, Family Court, Ranchi is directed to call for the
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original record of Original Suit No. 152 of 2026, now pending before the learned Additional Principal Judge-II, Ranchi, for its hearing along with the Original Suit No. 385 of 2024, which has been restored to its original file before the learned Principal Judge, Family Court, Ranchi.
60. Accordingly, the instant appeal is allowed and disposed of.
61. Pending IA(s), if any, stands disposed of.
(Sujit Narayan Prasad, J.)
(Sanjay Prasad, J.)
s.m. Dated 17.04.2026 AFR
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Colour shows how this judgement treated each authority
Jagdish Singh v. Madhuri DeviRelied on¶25
(2008) 10 SCC 497 · Who else cites this
Sugandhi v. P. RajkumarRelied on¶35
(2020) 10 SCC 706 · Who else cites this
Jasraj Inder Singh v. Hemraj MultanchandRelied on¶36
(1977) 2 SCC 155 · Who else cites this
Om Prakash @ Israel @ Raju @ Raju das Vs. Union of India & Anr.Referred¶37
2025 INSC 43 · Who else cites this
6 provisions across 3 enactments
Priyanka Jaiswal
Abhishek Prasad
Sujit Narayan Prasad
Sanjay Prasad
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court