Remanded

Randhir Kumar @ Randheer Kumar v. Reshma Kumari @ Manju Kumari

Patna HC11 Jan 2023MA/625/2019

Case brief

AI extract

What is this about?

The Patna High Court set aside an ex-parte judgment directing restitution of conjugal rights due to procedural breach regarding service of notice under CPC Order 5 Rule 20. The matter was remanded to the Family Court to consider merger with a pending dissolution suit and was directed to not oust the respondent from her home pending final decision.

What did the court decide?

Judgment remanded to Family Court for fresh evidence and consideration of merging with pending dissolution suit; respondent directed not to be ousted from matrimonial home pending final decision.

Randhir Kumar @ Randheer Kumar Vs Reshma Kumari @… — Matrimonial and Divorce | Patna HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Miscellaneous Appeal No.625 of 2019

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======================================================

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

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... ... Appellant/s

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Versus

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

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... ... Respondent/s

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======================================================

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Appearance : For the Appellant/s : Mr. Manish Kumar No. 13, Adv. Mr. Rohit Kumar, Adv. For the Respondent/s : Mr. Kumar Uday Bhanu Roy, Adv. Mr. Binit Kumar, Adv. ======================================================

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CORAM: HONOURABLE MR. JUSTICE ASHUTOSH KUMAR and

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

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Heard Mr. Manish Kumar No. 13, the learned

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Advocate for the appellant/husband and Mr. Kumar Uday

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Bhanu Roy, the learned Advocate for the

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respondent/wife.

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

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On an application filed by the

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respondent/wife for restitution of conjugal rights, the

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Family Court, Patna had issued notice to the appellant/husband, which was never served upon him.

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It has been urged on behalf of the

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appellant that even when the service report of the notice was not filed in the Court, the Court ordered for paper publication and ultimately this case was decided ex-

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parte, directing the appellant to take back the respondent and restore the conjugal relationship.

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Mr. Manish Kumar No. 13, the learned Advocate, has contested that passing a judgment exparte in such situation was not correct. There was no service report of summons before the Court for him to have issued directions for papers publication.

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Mr. Kumar further refers to the provisions

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contained in Order 5 Rule 20 of the Civil Procedure Code, which delineates the process under which, substituted service could be effected.

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

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3/6

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In support of the aforesaid contention, Mr.

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Kumar has produced for inspection of this Court the certified copy of the entire order-sheet of the Court below, which reflects that notice was directed to be issued on 10.10.2017 for which requisites were filed by the respondent by 05.01.2018. When the matter was taken up on 28.02.2018, there was no appearance of the appellant nor was there any service report. On the same day, without awaiting the service report of summons to the appellant, a direction was issued for paper publication, which, ultimately, may have been printed in the local newspapers. Nonetheless, for breach of the process as mandated under Order 5 Rule 20 CPC, the judgment ought not to be sustained and he be given an opportunity of presenting his cause before the Family

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Court.

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A surprising revelation has been made by Mr. Kumar Uday Bhanu Roy, the learned Advocate for the respondent/wife, that pursuant to the judgment

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Patna High Court MA No.625 of 2019 dt.11-01-2023 4/6

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impugned in the present petition, the respondent has gone back to her matrimonial home and is residing there.

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We were, at one point of time, reluctant to pass any order in this appeal for the reason that the respondent was absolutely satisfied that the judgment has been complied with. However, the counsel for the appellant has disclosed another set of more queer facts, which cannot be adjudicated in this appeal.

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It has been alleged that the

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appellant/husband was forcibly married when he was only 13 years of age, which fact, according to him, has been admitted by the respondent/wife, but only because he could not appear before the Family Court, this issue could not be brought to the fore.

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In response to the afore-stated

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statement, Mr. Roy, the learned counsel for the respondent/wife submits that in fact, a suit was brought by the appellant for dissolution of marriage, which was

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Patna High Court MA No.625 of 2019 dt.11-01-2023 5/6

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dismissed for non-prosecution. Against the aforesaid dismissal, the appellant had approached this Court when the matter was remitted to the Family Court with a direction to restore the suit and proceed in accordance with law. Thereafter, the case for dissolution of marriage is continuing before the Family Court in which the respondent has also appeared and has been contesting the same.

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Under such circumstance, we deem it appropriate to set-aside the ex-parte judgment and remit the matter to the Family Court to allow the parties to adduce fresh set of evidence for finally coming to a conclusion.

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The Family Court shall also consider the feasibility of merging the aforesaid petition with the petition for dissolution of marriage and decide the matter finally.

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We order accordingly.

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The Family Court is directed to either take

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

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6/6

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up the case individually or along with the suit for dissolution of marriage, affording all opportunities to the parties to present their cause and take a final decision without any delay.

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However, we further direct that in case

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the respondent is residing in her matrimonial home, in the meantime, till the suit is finally decided, she shall not be ousted from her matrimonial home and any attempt to do that would enable the respondent to approach the Family Court for the needful.

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The appeal stands disposed off

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accordingly.

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(Ashutosh Kumar, J)

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(Satyavrat Verma, J)

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Praveen-II/Rishabh

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

Randhir Kumar @ Randheer Kumar v. Reshma Kumari @ Manju Kumari

Case brief

What is this about?

What did the court decide?

Randhir Kumar @ Randheer Kumar v. Reshma Kumari @ Manju Kumari

Case brief

What is this about?

What did the court decide?

What the court decided

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